Nicholas Bagley | Could the Supreme Court stay King? A qualification. | The Incidental Economist

November 24, 2014

Even if the government loses, King wouldn’t call into question the validity of tax credit payments made before June 2015, when the Supreme Court is likely to decide King. Under 26 U.S.C. §7805(b)(8), the IRS has the power to “prescribe the extent, if any, to which any ruling (including any judicial decision …) relating to the internal revenue laws shall be applied without retroactive effect.” In plain English, that means the IRS need not claw back tax credits that were paid out before the Court’s decision.

But what happens after June? Unless the Supreme Court stays its decision, the IRS would have to abruptly stop issuing advance tax credits. The effects would be felt almost immediately: 4.5 million people would see their insurance rates surge; many of them would drop coverage; and insurers’ risk pools would skew toward the unhealthy, leading to enormous losses. In a word, there would be chaos on

via Could the Supreme Court stay King? A qualification. | The Incidental Economist.

In Partisan Washington, Health Law Faces Grave Legal Technicalities –

November 24, 2014

Ms. Wilensky holds out hope that the court might yet prod Congress to act. If a majority of justices call on lawmakers to resolve the ambiguity, she reasoned, Republicans might then salvage the challenged subsidies in return for changes such as curbing health-care mandates on employers.

That may be wishful thinking.

“The kind of changes that Gail is talking about come from a mentality about negotiation between the two parties that used to be the rule here in Washington,” said Henry J. Aaron, a policy analyst at the Brookings Institution who served in Mr. Clinton’s administration.

“People of good will on both sides got together, they didn’t always agree, they worked out their differences and they dealt with problems,” Mr. Aaron said. “That is all too regrettably now missing from the scene here.”

via In Partisan Washington, Health Law Faces Grave Legal Technicalities –

Oklahoma seeks faster health care appeal UPDATED : SCOTUSblog

November 24, 2014

The state of Oklahoma, arguing that the Supreme Court should consider the views of a state government when it rules on the legality of federal tax subsidies to be paid to insurance-buying consumers under the Affordable Care Act, has urged the Court to review that state’s case when it considers the already granted case of King v. Burwell.

Following a request by the Obama administration, Oklahoma’s case is on hold now at the U.S. Court of Appeals for the Tenth Circuit, while the Justices review the King case.  But Oklahoma’s attorney general, Scott Pruitt, is now seeking to bypass the appeals court with a new petition.  The petition itself is not yet available, but it has been docketed by the Supreme Court.

via Oklahoma seeks faster health care appeal UPDATED : SCOTUSblog.

Beyond Gruber: How HHS Flip-Flopped on Federal Exchange Subsidies | Competitive Enterprise Institute

November 21, 2014

The following timeline demonstrates that HHS initially set out to establish its federal exchange,, without a tax credit calculator—that is, it set up the federal exchange so that it could not provide users any information about tax credits. This strongly suggests that its original interpretation was that only residents of states that established their own exchanges were entitled to tax credits. It was only after many states decided against setting up exchanges that HHS and the Obama administration changed course and began claiming that the Affordable Care Act allows tax credits for both state and federally facilitated exchanges. Only then did HHS begin developing a tax credit calculator for

via Beyond Gruber: How HHS Flip-Flopped on Federal Exchange Subsidies | Competitive Enterprise Institute.

Liberal Lawyer to Represent House of Representatives Against Obama | The Weekly Standard

November 20, 2014

Jonathan Turley, a liberal law professor and attorney, announced on his blog Tuesday he will be representing the House of Representatives in its lawsuit against the Obama administration. Here’s Turley:

As many on this blog are aware, I have previously testified, written, and litigated in opposition to the rise of executive power and the countervailing decline in congressional power in our tripartite system. I have also spent years encouraging Congress, under both Democratic and Republican presidents, to more actively defend its authority, including seeking judicial review in separation of powers conflicts. For that reason, it may come as little surprise this morning that I have agreed to represent the United States House of Representatives in its challenge of unilateral, unconstitutional actions taken by the Obama Administration with respect to implementation of the Affordable Care Act ACA. It is an honor to represent the institution in this historic lawsuit and to work with the talented staff of the House General Counsel’s Office. As in the past, this posting is meant to be transparent about my representation as well as my need to be circumspect about my comments in the future on related stories.

via Liberal Lawyer to Represent House of Representatives Against Obama | The Weekly Standard.

Meet Michael Cannon, the man who could bring down Obamacare – Vox

November 19, 2014

Cannon contends that Congress specifically meant to limit insurance subsidies to states that ran their own marketplaces. He notes that the part of the Affordable Care Act that authorizes the money says that the subsidies are available to people who enrolled “through an Exchange established by the State.”

Because the law is written that way, Cannon and the Supreme Court plaintiffs hold that subsidies are available only on state-based exchanges, not on the exchanges used by the majority of states.

The lawsuit is a genuine existential threat to Obamacare. If the Supreme Court rules for the plaintiffs, the law’s marketplaces would collapse in most states. I spoke with Cannon in mid-November about the case against Obamacare subsidies, how it began, and what it would mean for the Affordable Care Act if this lawsuit succeeded.

via Meet Michael Cannon, the man who could bring down Obamacare – Vox.

A Lawless Presidency Will Destroy Itself « Commentary Magazine

November 17, 2014

The spectacle of mass amnesty without benefit of law will shock ordinary voters, including many who are Democrats or who think the immigration system should have been fixed. After the orders, responsibility for the failure to do so will rest on Obama, not the Republicans. What the president may be doing with these orders is to remind the voters that parties that grow too comfortable with exercising authority without benefit of law must be taught a lesson, one that will be paid for by his would-be Democratic successor in 2016. Rather than building his legacy, the president may actually be ensuring that his time in office is remembered more for his lack of respect for the rule of law than any actual accomplishments.

via A Lawless Presidency Will Destroy Itself « Commentary Magazine.


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