By the way, the D.C. Circuit might nuke ObamaCare tomorrow

posted at 8:21 pm on July 2, 2014 by Allahpundit

Remember the Halbig case? If not, catch up right now by re-reading this post from January, written after a D.C. district court judge ruled in Obama’s favor. O-Care is a famously complex law but the lawsuit that could end up demolishing it is surprisingly simple. In a nutshell, there’s a line buried deep in the statutory text that says federal subsidies for insurance premiums will be available to anyone who buys a plan on “an Exchange established by the State.” Question: Does Healthcare.gov, the exchange built by the federal government after 34 states refused to build their own exchanges, qualify as an “Exchange established by the State”? Or do only state exchanges qualify? If it’s the latter, then millions upon millions of people who’ve signed up for O-Care through Healthcare.gov since October in the expectation that Uncle Sam will be paying part of their bill are in for a nasty surprise. The only fix that’s available (unless His Majesty tries some executive gambit, of course) is for Congress to amend the statute so that subsidies are available on the federal exchange too, but what are the odds of the House GOP agreeing to that? If the D.C. Circuit, which is set to rule any day now on the appeal of the earlier ruling, sides with the challengers against O, consumers will be forced to either come up with the money for their premiums themselves or drop their coverage. And if most of them choose to drop coverage, leading to a mass exodus of healthy people from various insurance risk pools, suddenly the White House is facing a death-spiral problem where hiking premiums on the remaining enrollees is the only way to pay for all the sick people still in the pool. That’ll lead to more dropped coverage, which means even higher premiums, and then it’s spiralmania.

It’s a magic bullet, aimed right at the heart of ObamaCare. What will the D.C. Circuit do? TPM wonders:

The challenge was initially written off by some as a fool’s errand because there’s a lack of evidence that the Democrats who crafted and passed the Affordable Care Act intended to block subsidies on the federal exchange, which was designed as a backstop on behalf of the states. (They’ve signed a brief saying as much.) But the challengers seized on an ambiguity in the language of the statute which says the subsidies are to be provided by “an Exchange established by the State.”

“If the legislation is just stupid, I don’t see that it’s up to the court to save it,” Judge A. Raymond Randolph said during oral arguments in March.

Randolph, a George H.W. Bush appointee, said the text of the statute “seems perfectly clear on its face” that the subsidies are confined to state-run exchanges. Carter-appointed Judge Harry T. Edwards slammed the challengers’ claims as “preposterous.” So the deciding vote appears to be with George W. Bush-appointed Judge Thomas B. Griffith, who wasn’t resolute but sounded unconvinced of the Obama administration’s defense, saying it had a “special burden” to show that the language “doesn’t mean what it appears to mean.”

In a way, this is an analog to Obama’s power grab on immigration, which he defends as necessary because Congress is paralyzed. Will the D.C. Circuit read the statute as it’s written and leave it to Congress to resolve the ambiguity over “state” exchanges or, knowing that Congress won’t do a thing to resolve it, will the court feel obliged to minimize disruption to America’s new insurance regime by interpreting the word “state” broadly? The lower court reasoned that the federal ObamaCare exchange isn’t really a “federal” exchange, it’s an amalgamation of 34 different state exchanges that the federal government established on behalf of each of those 34 states. In that sense, the federal exchange is a “state” exchange (or a group of state exchanges) and therefore its customers are eligible for subsidies. Law prof Jonathan Adler has led the charge in arguing the opposite, that the whole reason the statute was drafted the way it was is because Congress wanted to give states an extra incentive — namely, subsidies for its residents — to set up their own individual insurance exchanges. If a state refused to comply and forced the feds to set up an exchange on its behalf instead, its residents would be punished by having their eligibility for subsidies removed. (Adler wrote a thorough reply to the district court’s ruling for WaPo back in March.) The D.C. Circuit needs to choose between those two interpretations. And depending upon how they rule, SCOTUS may get a crack at it — which, per Jonathan Turley, is potentially also bad news for O-Care fans:

But the D.C. Circuit Court may see things quite differently, especially in light of recent Supreme Court opinions holding that the Obama administration has exceeded its authority and violated separation of powers.

In Michigan vs. Bay Mills Indian Community, for example, Justice Elena Kagan noted that “this court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address.” In Utility Air Regulatory Group vs. EPA, Justice Antonin Scalia, writing for the majority, stressed that “an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” And a third strike came last week in National Labor Relations Board vs. Canning, when the Supreme Court unanimously found that President Obama had violated the Constitution in circumventing Congress through his use of recess appointments…

Moreover, a ruling against the administration would mean that Obama has been responsible for ordering what could amount to billions of dollars to be paid from the federal Treasury without authority. And it would mean the administration has committed yet another violation of the separation of powers.

It’s impossible for me to believe that the Supremes generally and John Roberts specifically, having eaten boatloads of crap from the right for upholding ObamaCare on the challenge to the individual mandate, are now going to pull a “never mind” and torch the whole thing because of a drafting ambiguity, but hope springs eternal for separation-of-powers aficionados like Turley. So much for the legal angle to all this. Here’s the political angle: What happens if the D.C. Circuit does nuke the subsidies eligibility for federal-exchange consumers? Would the House GOP even consider a bill reinstating those subsidies in exchange for other concessions of some kind? Before you say “hell no,” bear in mind that there’ll be a lot of voters out there PO’d that they’ve just lost their sugar from Uncle Sam and a lot of Democrats whispering to them that they could have that sugar back if only the damned Republicans didn’t want to see them suffer. Plenty of hay could be made before the midterms. Phil Klein, who has more faith in Boehner and crew than me, thinks there’s no way House Republicans would dare cave on subsidies, certainly not before SCOTUS has ruled on this at least. Hopefully he’s right — emphasis on “hopefully.” But maybe it’s all moot: If the GOP held out and refused to reinstate the subsidies, His Majesty would be tempted to issue some sort of dubious executive order (say, right around November 1st) proclaiming that the subsidies will be reinstated under HHS’s authority. That might be illegal, but even if it is, what’s anyone going to do to stop him? And even if there is a way to stop him by suing him over it, how will that stop him in time to prevent him from reaping the benefits at the polls on election day? Gulp.


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Comment pages: 1 2

Did the severability clause issue die as well?

can_con on July 2, 2014 at 8:25 PM

whatever…

rob verdi on July 2, 2014 at 8:26 PM

Please don’t let McCain hear the word ‘nuke’.

faraway on July 2, 2014 at 8:28 PM

Hope springs eternal…

Lord Whorfin on July 2, 2014 at 8:29 PM

Give me something to dream about.

Cindy Munford on July 2, 2014 at 8:30 PM

I given up any hope of ever being rid of Obummercare.

the_moll on July 2, 2014 at 8:30 PM

Obama will never read about this one.

faraway on July 2, 2014 at 8:30 PM

“If the legislation is just stupid, I don’t see that it’s up to the court to save it,”

Well, we all know this POS legislation is the quintessential stupidity but that didn’t stop John “It’s A TAX!” Roberts from finding a way to save it two years ago. His idea was the opposite: if the public is stupid enough to elect a president and congress which can create so vast a stupidity, don’t count on the court to bail you out. I doubt that the DC Circuit will want to stick their neck out and overturn the entire stupidity of ObamaCare over an ambiguity. I think that they think that would be just stupid. But who knows, with Obama’s poll numbers in the tank, they may be emboldened…

Marxism is for dummies on July 2, 2014 at 8:31 PM

Words mean what only what Fuhrer Obama says they mean, no more and no less.

VorDaj on July 2, 2014 at 8:32 PM

…are now going to pull a “never mind” and torch the whole thing because of a drafting ambiguity…

 
Except it’s not a drafting ambiguity. It’s the way the law was written, reviewed, debated, and passed.
 
There’s a lesson there for anyone willing to see it.

rogerb on July 2, 2014 at 8:34 PM

We have to litigate it to find out what’s in it.

whatcat on July 2, 2014 at 8:36 PM

Did the severability clause issue die as well?

can_con on July 2, 2014 at 8:25 PM

That’s not relevant in this case because the objection isn’t a constitutional one but of how the law is being enforced by the executive branch.

HidetheDecline on July 2, 2014 at 8:36 PM

Time for a little red mercury to the system.

formwiz on July 2, 2014 at 8:37 PM

Since when do statutes mean anything to this administration? He has a pen and a phone. And a propaganda network to handwave away any doubt to the validity of Glorious Leaders power will coagulate around him. The masses will divert their eyes from any challenges and resume texting, twittering and Facebooking.

Mimzey on July 2, 2014 at 8:38 PM

Roberts will call the subsidy a negative tax.

tdarrington on July 2, 2014 at 8:38 PM

Yeah, right.

Philly on July 2, 2014 at 8:39 PM

The longer he’s president , the more i feel like i live in a banana republic

disguted by the elites on July 2, 2014 at 8:40 PM

Easy out. State is capitalized so the judges can claim that it refers to the nation not just the states. Bogus? Of Course but an easy out for the court.

xkaydet65 on July 2, 2014 at 8:41 PM

That might be illegal, but even if it is, what’s anyone going to do to stop him?

An apt summary of the past 5 1/2 years.

IrishEyes on July 2, 2014 at 8:42 PM

I am sure John Roberts is pulling some strings to make sure the left wins this one too. Blackmail does wonders…/

CW on July 2, 2014 at 8:43 PM

Where does it say the DC Circuit Court is ruling tomorrow on this?

sentinelrules on July 2, 2014 at 8:44 PM

The silver bullet is one or two lines??? Who writes this legislation?? You put in a sentence that could bring the whole thing down.

sorrowen on July 2, 2014 at 8:44 PM

A) My guess is the Court will not rule in our favor, not at this late date.

and

B) But if they did, Boehner would get an amendment through. He’s not one of us.

BKeyser on July 2, 2014 at 8:45 PM

The three judge panel could rule for the challengers but put their decision on hold until the entire DC Court of Appeals rules on it. Then, if the entire court rules for the government, the Supreme Court could simply refuse to hear an appeal.

CL on July 2, 2014 at 8:46 PM

Eeyore flag raised……
Roberts has saved it before these guys will save it as well

cmsinaz on July 2, 2014 at 8:47 PM

It’ll all end up as a big massive bailout in one form or another. The government solves all.

MT on July 2, 2014 at 8:47 PM

Nobody wants to pull the trigger.

de rigueur on July 2, 2014 at 8:47 PM

If the GOP held out and refused to reinstate the subsidies, His Majesty would be tempted to issue some sort of dubious executive order (say, right around November 1st) proclaiming that the subsidies will be reinstated under HHS’s authority.

Seriously Allah?

If the DC court rules against the subsidies, they would most likely issue a stay of their decision.

So the subsidies would still be the law for the November elections.

sentinelrules on July 2, 2014 at 8:47 PM

You see this is the issue with 2 thousand plus page legislation and regulations 8 feet tall. Take out one card the whole house comes down.

sorrowen on July 2, 2014 at 8:47 PM

“What difference does it make, at this point?” – Cankles Clintoon

NiteOwl on July 2, 2014 at 8:50 PM

I’m not this lucky

gophergirl on July 2, 2014 at 8:50 PM

Did the severability clause issue die as well?

can_con on July 2, 2014 at 8:25 PM

Roberts killed it in 2012. The mandated expansion of Medicaid that was contained in PlaceboCare and voided by SCOTUS, had Roberts followed precedent, would have caused the voiding of the entirety of PlaceboCare due to the lack of a severability clause.

Steve Eggleston on July 2, 2014 at 8:50 PM

Obummercare just another bummer that needs to be killed.

tim c on July 2, 2014 at 8:50 PM

Question: Does Healthcare.gov, the exchange built by the federal government after 34 states refused to build their own exchanges, qualify as an “Exchange established by the State”?

intentionalism: no!

newrouter on July 2, 2014 at 8:52 PM

Where does it say the DC Circuit Court is ruling tomorrow on this?

sentinelrules on July 2, 2014 at 8:44 PM

Good catch.

From the relevant link (to TalkingPointsMemo) made by AllahPundit:

Any day now, a three-judge panel on the D.C. Circuit Court of Appeals is expected to rule in Halbig v. Burwell …”

ShainS on July 2, 2014 at 8:52 PM

The subsidies are simply a vote buying scheme anyway. Vote Dem and they will keep the gravy train rolling…. right over the cliff.

NiteOwl on July 2, 2014 at 8:53 PM

Phil Klein, who has more faith in Boehner and crew than me, thinks there’s no way House Republicans would dare cave on subsidies, certainly not before SCOTUS has ruled on this at least.

If the court rules against Oblahblah, effectively killing it, and then the GOPe Rollover Caucus caves and gives ObamaGlitch a DO OVER?

Well, it will END the GOP. That’s just a fact right there.

Meople on July 2, 2014 at 8:54 PM

Not a chance in hell.

Jaibones on July 2, 2014 at 8:55 PM

Roberts will call the subsidy a negative tax.

tdarrington on July 2, 2014 at 8:38 PM

Well someone does have to get taxed to pay for it. Right???
/

CW on July 2, 2014 at 8:56 PM

It will not be overturned.

Expect the majority opinion to actually read something like “There are numerous legal and even unconstitutional issues within Obamacare, but the good that will be done to the American people by giving them affordable healthcare is more important than issues like upholding the law.”

TaraMaclay on July 2, 2014 at 8:58 PM

I’m not going to hold my breath. The only way to get rid of this dog is in November 2016. (After November 2014 too.)

COgirl on July 2, 2014 at 8:59 PM

TrollahP.

Jedditelol on July 2, 2014 at 9:01 PM

Just when it was on a winning streak!!!!!

Chuck Schick on July 2, 2014 at 9:03 PM

I’ve dealt with some hack judges in my time but the district court judge in this case has to be among the worst.

“Exchange established by the State”

There is nothing subject to interpretation. Nothing. But then we have Justice Roberts calling the penalty for refusing to buy something a tax. Strange times.

cthemfly on July 2, 2014 at 9:04 PM

If it ends up in the Supreme Court, it wouldn’t be decided until after the midterms though, right?

drewwerd on July 2, 2014 at 9:05 PM

The longer he’s president , the more i feel like i live in a banana republic

disguted by the elites on July 2, 2014 at 8:40 PM


FIFY

PolAgnostic on July 2, 2014 at 9:07 PM

This is a nothingburger. Obama will do what he wants, and there is no way to stop him. Or the balls in any house or senate to stop him.

He will keep winning.

Walter L. Newton on July 2, 2014 at 9:07 PM

The longer he’s president , the more i feel like i live in a banana republic

disguted by the elites on July 2, 2014 at 8:40 PM

I keep hoping I’ll wake up…

Daylight come and I wanna go home…

malclave on July 2, 2014 at 9:12 PM

There is also PLF’s Sissel v. U.S. Department of Health and Human Services, which would sink the whole, not the parts.

J.B. Say on July 2, 2014 at 9:19 PM

In a nutshell, there’s a line buried deep in the statutory text that says federal subsidies for insurance premiums will be available to anyone who buys a plan on “an Exchange established by the State.”

This was discussed a long time ago, and one thing that I think was pointed out was that the law gave funding for states to establish exchanges, but none for the federal government to do so. The implication is that the feds thought the states would be doing it. There was, as I remember it, no section that compelled the states to do so, and that is why so many Republican governors never did.

Obamacare has always been a mess. This is what you get with a massive law drafted by a bunch of congressional aides that no one read.

I’m ready to have my memory corrected.

INC on July 2, 2014 at 9:22 PM

If it ends up in the Supreme Court, it wouldn’t be decided until after the midterms though, right?

drewwerd on July 2, 2014 at 9:05 PM

Right. Long after the mid-terms.

AZCoyote on July 2, 2014 at 9:38 PM

From the old January post that AP mentions at the top:

…Jonathan Adler: Congress intentionally limited subsidies to state-run exchanges to give the states an incentive to set up their own exchange. The feds didn’t want to build Healthcare.gov; they’d prefer that each state deal with this themselves. But since they can’t force states to do the federal government’s bidding, the best they can do is tack on monetary inducements to get them to play ball. That’s where the subsidies come in.

It links back to this piece by Adler:

http://www.volokh.com/2012/12/12/the-illegal-irs-rule-on-health-insurance-exchanges-a-reply-to-bagenstos/

…The PPACA’s supporters anticipated that every state would create its own exchange, and the law provides for tax credits and subsidies for the purchase of qualifying health insurance plans in state-run exchanges. Yet as Michael Cannon and I pointed out the PPACA does not authorize tax credits and subsidies in exchanges run by the federal government. This is a potential problem because at least twenty states are refusing to create their own exchanges and are defaulting to the federal option. In response, the IRS issued a rule to authorize tax credits and subsidies in federal exchanges. The only problem, as Cannon and I explain at length in a forthcoming article in Health Matrix, the IRS rule is illegal.

INC on July 2, 2014 at 9:38 PM

I swear to God allahpundit is as full of crap as a Christmas turkey.

Republicans have nothing to fear from people missing their ‘sugar’ because the majority of them are Dim leeches to begin with.

And most of the rest are Republican Obamacare hostages who don’t care how it dies, as long as it does.

I know, I am one.

My voting intensity to protect the kill will spike just as high as that of any leech.

bildung on July 2, 2014 at 9:40 PM

The administration has already submitted a letter to the court stating they will not be bound by any decision that immediately enjoins the payment of subsidies. I forget the specious legal grounds.

bluesdoc70 on July 2, 2014 at 9:41 PM

Did the severability clause issue die as well?

can_con on July 2, 2014 at 8:25 PM

Roberts killed it in 2012. The mandated expansion of Medicaid that was contained in PlaceboCare and voided by SCOTUS, had Roberts followed precedent, would have caused the voiding of the entirety of PlaceboCare due to the lack of a severability clause.

Steve Eggleston on July 2, 2014 at 8:50 PM

It was put on life support before Obamacare in Free Enterprise Fund v Public Company Accounting Oversight Board, 130 S. Ct. 3138 (2010).

Resist We Much on July 2, 2014 at 9:42 PM

Might the court of appeals invalidate the law but stay enforcement til appeals are finished?

If so there would be no rush for The supremes to rule outside of their normal order of business, right?
So no Obama heroics in November.

richardb on July 2, 2014 at 9:44 PM

Whine whine whine …

Boehner Roberts Boehner …

STFU! It’s bad enough AP has succumbed to his inner Eeyore and the bad influences of Noah Rothman. I am NOT to sit back and sob like a member of the “Weepy” Boehner Fan Club … not me, man! I am NOT taking this crap lying down. ….Did we just give up when Joe Biden bombed Pearl Harbor??? …. NO !!!! … Do NOT make me go the Full Bluto on your sorry azzes! … WHO’s WITH ME?????

More to the point: There are still OTHER cases which CAN KILL Obamacare deader than Hillary’s ability to connect to “the little people” (Shrillary: Why don’t people just go on the speaking circuit like I did if they need money?)

These Six Court Cases Could Cripple Obamacare

Just the topline titles

1. Legal Taking of Private Property
2. Origination Clause
3. Separation of Powers
4. Subsidies to Congressional Staff
5. The Subsidies on Federal Exchanges
6. The Contraception Mandate – Oh, yeah; this one was a WIN two days ago

PolAgnostic on July 2, 2014 at 9:44 PM

More Adler:

Congress expected states would willingly create exchanges if given mild inducement, and the Senate bill was written accordingly. This was in error, but it does not justify rewriting the statute.

More from Tanner at NRO in July 2012:

…Of course, if states refuse to set up an exchange, Obamacare gives the federal government the authority to step in and operate an exchange itself in those states. But there is reason to doubt that the federal government has either the ability or the money to do so. Congress has not appropriated any funding for this purpose and seems unlikely to do so.

More important, as my colleague Michael Cannon has discovered, a little-discussed provision of Obamacare makes federal subsidies for insurance available only through those exchanges that the states set up themselves. So, while the federal government does have the power to create exchanges in states that refuse to do so, it cannot offer subsidies through those federally run exchanges.

The Obama administration and the IRS, unsurprisingly, have claimed that they have the right to unilaterally rewrite the law, yet again, to close this loophole. But, at the very least, this would be open to legal challenge. And perhaps next time the Supreme Court will get it right.

In a world of even imperfect and modest common sense you would think so, but it remains to be seen what will happen.

I do think that if the court nukes ObamaCare the R’s in Congress are too cowardly to try to resuscitate it. I place my trust not in their character, but in their lack of spine. Opposition has never decreased, and IMO they would have their heads handed to them if they tried to do so.

INC on July 2, 2014 at 9:48 PM

bildung on July 2, 2014 at 9:40 PM

The squeaky wheel gets the grease. In this case I don’t think the LIV would be making the most noise. The outcry from outraged voters who never wanted ObamaCare in the first place or who have since been shafted by it would be deafening.

INC on July 2, 2014 at 9:50 PM

Forgot link to Tanner:

http://www.nationalreview.com/articles/304729/states-resist-obamacare-michael-tanner

The administration has already submitted a letter to the court stating they will not be bound by any decision that immediately enjoins the payment of subsidies. I forget the specious legal grounds.

bluesdoc70 on July 2, 2014 at 9:41 PM

Yet more of the Obama WH thumbing its nose at the rule of law. We have a tyrant enabled by the feckless R’s in Congress.

INC on July 2, 2014 at 9:55 PM

Despite the media, despite the spin, despite all the left throws at us, Obama is on a lifeline and politically he’s about to flat line. There’s a reason that no D running in a purple or a red state/district wants to be seen with him. They’re at Def-Con 5, survival mode, smelling the napalm about to engulf them.

This November will make 2010 a year the libs will long for.

TXUS on July 2, 2014 at 10:00 PM

I buy ammo and no mater what happens I feel better.

jukin3 on July 2, 2014 at 10:01 PM

Uh, no. Something as complex as Obamacare is not going to be toppled by something as simple as Halbig. The “Best Legal System in the World” has never allowed such a thing to come to pass. No way, no how. Next?

HiJack on July 2, 2014 at 10:14 PM

DC Judges?

JugEarsButtHurt on July 2, 2014 at 10:17 PM

But the challengers seized on an ambiguity in the language of the statute which says the subsidies are to be provided by “an Exchange established by the State.”

LMAO

“ambiguity”

The applicable principle of statutory construction is the plain meaning rule.

The courts do not fix what the legislature screwed up.

An exchange established by the Federal government is not “an Exchange established by the State.”

DOJ, you lose.

slp on July 2, 2014 at 10:19 PM

Re: Political considerations

His Majesty would be tempted to issue some sort of dubious executive order (say, right around November 1st) proclaiming that the subsidies will be reinstated under HHS’s authority. That might be illegal, but even if it is, what’s anyone going to do to stop him? And even if there is a way to stop him by suing him over it, how will that stop him in time to prevent him from reaping the benefits at the polls on election day?

Please feel free to correct me if I’m wrong on this BUT…aren’t the vast majority of those who have signed up for DumbassCare those who already had insurance (most of whom were quite happy with what they had) and lost it because it no longer met the requirements of the law?

Aren’t we talking about a relative few, a very, very small minority of voters who are benefitting from free or grossly subsidized healthcare? And if that’s the case…screw them. Overturn this monstrosity and be done with it.

trapeze on July 2, 2014 at 10:24 PM

trapeze on July 2, 2014 at 10:24 PM

It is my understanding that 85% of sign-ups are subsidized.

In other words, we are paying for their insurance.

Barred on July 2, 2014 at 10:27 PM

GOP to the rescue. Obamacare is too big to fail. After all Dreamers need it

Brock Robamney on July 2, 2014 at 10:34 PM

There is nothing ambiguous about: “Exchange established by the State” Words have meaning.

Wendya on July 2, 2014 at 10:38 PM

In Michigan vs. Bay Mills Indian Community, for example, Justice Elena Kagan noted that “this court does not revise legislation …

What a laugh, tell that one to the Chief Traitor John “Benedict” Roberts.

RJL on July 2, 2014 at 10:39 PM

Please feel free to correct me if I’m wrong on this BUT…aren’t the vast majority of those who have signed up for DumbassCare those who already had insurance (most of whom were quite happy with what they had) and lost it because it no longer met the requirements of the law?

That would be every self employed person and small business owner who didn’t offer group insurance.

Wendya on July 2, 2014 at 10:39 PM

If the D.C. Circuit, which is set to rule any day now on the appeal of the earlier ruling, sides with the challengers against O, consumers will be forced to either come up with the money for their premiums themselves or drop their coverage.

They will drop their coverage, they will have to. The only way the piece-of-crap Obamacare policies are affordable is because of huge subsidies which generally leave the policies STILL more expensive than they were in 2013.

The only alternative would be for Barry to declare by fatwa that the insurers no longer have to include all the ‘features’ of the piece-of-crap Obamacare that caused premiums to skyrocket. The big one there is pre-existing. That would lower premiums back to near-2013 levels and stop a massive migration out of insurance.

slickwillie2001 on July 2, 2014 at 10:42 PM

It is my understanding that 85% of sign-ups are subsidized.

In other words, we are paying for their insurance.

Barred on July 2, 2014 at 10:27 PM

And it is also my understanding that most everyone who had insurance before DumbassCare didn’t need to BE subsidized because health insurance was relatively affordable to those who wanted it. Now, since everyone is required to have it (or pay the tax/fine) in order to subsidize the previously uninsurable and “poor” the premiums are so damned high that subsidies have to be offered so that most people aren’t priced out of the market altogether.

I don’t qualify for a subsidy and my rates have more than doubled while my out of pocket has more than quadrupled. So again, screw the few who are actually benefitting on the backs of those who aren’t.

trapeze on July 2, 2014 at 10:48 PM

These Six Court Cases Could Cripple Obamacare

Just the topline titles

1. Legal Taking of Private Property
2. Origination Clause
3. Separation of Powers
4. Subsidies to Congressional Staff
5. The Subsidies on Federal Exchanges
6. The Contraception Mandate – Oh, yeah; this one was a WIN two days ago

PolAgnostic on July 2, 2014 at 9:44 PM

Thanks for that. I hope at least one comes through.

1. I wonder if taking is the right way to look at this. It has been ruled a tax. In United States v. Butler, the court struck down the Agricultural Adjustment Act because it taxed one group to subsidize another. I don’t think this fits. It seems a general tax, thanks to Roberts.

2. This one I like, since the court has been striking down things that on their face are not constitutionally justifiable, like “recess” appointments.

3. This one does not seem to be a heavy hitter as far as striking down the law is concerned.

4. This one is neat because Senator Johnson would have to have standing on that subsidy. It would mean the ruling class would have to live with the crap they try to shove down our throats.

5. This one has a lot of merit. Again, the law is being violated by O’s unlawful changes. Strike his patches and the think collapses, as it should.

6. This one is pretty limited. A tiny hurrah.

J.B. Say on July 2, 2014 at 10:54 PM

After what Roberts pulled to get it this far I have no faith in our justice system. It’s not about the law any more it’s about no one wanting to take responsibility for anything. I’m sure Roberts got shamed into his vote with something that sounded like “But John we now have the opportunity to provide the whole country with good health care and you’re going to take it away because of a word?” or something along those lines. There was a time when a word would have meant something and a judge would have said, “Maybe next time they’ll get the words right.”

This law needs to go, one way or the other.

bflat879 on July 2, 2014 at 10:54 PM

After what’s going on in Murrieta CA, I have a feeling there is going to be violence against the Govt for its overreach in our lives. If this weren’t so, there wouldn’t be laws passed in CA to ban guns and ammo, and NOAA wouldn’t need a SWAT team

Brock Robamney on July 2, 2014 at 11:00 PM

From Cato:

Resources for a Potential Ruling Today in Halbig v. Sebelius

Obviously the court has yet to rule, but there are links at the site. The post also says that the court typically hands down rulings on Tuesday or Friday.

This looks interesting:

For Reporters, Law Professors, Citizens: A Reference Guide To President Obama’s Illegal ObamaCare Taxes” is a complete guide to everything ever been written about the Halbig cases. Statutes, legislative history, regulations, court documents, news reports, opinion pieces, everything. A good place to harvest hyperlinks.

More here:

http://www.forbes.com/sites/michaelcannon/

INC on July 2, 2014 at 11:01 PM

It is my understanding that 85% of sign-ups are subsidized.

In other words, we are paying for their insurance.

Barred on July 2, 2014 at 10:27 PM

I can believe that number, and that means the other 15% signed up for free Medicaid.

Anyone that is not heavily subsidized would be nuts to buy through the piece-of-crap Obamacare site when they could just go to the health insurer’s website and do it there without exposing their identity to theft via government corruption and incompetence.

slickwillie2001 on July 2, 2014 at 11:14 PM

If they have any honor, they will rule that the IRS had no authority to write a rule approving subsidies to those who applied on the federal exchange. The law is not ambiguous, and the language was written specifically to encourage states to take on the burden and expense of creating an exchange.

“an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”

That is what the ruling should be here, too.

azpatriotsdotcom on July 2, 2014 at 11:44 PM

After what’s going on in Murrieta CA, I have a feeling there is going to be violence against the Govt for its overreach in our lives. If this weren’t so, there wouldn’t be laws passed in CA to ban guns and ammo, and NOAA wouldn’t need a SWAT team

Brock Robamney on July 2, 2014 at 11:00 PM

I agree, and what is interesting is that Democrats recently proposed a change in law for political assassinations:

“The Federal Death Penalty Abolition Act, H.R. 3741, would end the death penalty for assassination or kidnapping that results in the death of the president or vice president, and also ends it for the murder of a member of Congress.”

Read more: http://thehill.com/blogs/floor-action/house/193292-dem-bill-ends-death-penalty-for-murder-treason-espionage#ixzz36NFkXXqA

azpatriotsdotcom on July 2, 2014 at 11:53 PM

rogerb: “Except it’s not a drafting ambiguity. It’s the way the law was written, reviewed, debated, and passed.”

Passed before any of our esteemed legislators read it. In the infamous words of Nancy Pelosi: We’ll have to pass the law to find out what’s in it”………DOH !!!!! It’s going to be hard to save the Republic, when its run by such morons.

kjatexas on July 3, 2014 at 12:11 AM

If they have any honor, they will rule that the IRS had no authority to write a rule approving subsidies to those who applied on the federal exchange. The law is not ambiguous, and the language was written specifically to encourage states to take on the burden and expense of creating an exchange.

“an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”

That is what the ruling should be here, too.

azpatriotsdotcom on July 2, 2014 at 11:44 PM

Yes, they thought that the piece-of-crap Obamacare would be so wonderful that no state could possibly refuse it.

slickwillie2001 on July 3, 2014 at 12:11 AM

“the State”. That sounds like some other Obama fellow travelers — “Everything in the State, nothing outside the State, nothing against the State”, “L’etat? C’est moi!”

jdpaz on July 3, 2014 at 12:13 AM

The law itself defines the term “State” (capital “S”) as each of the 50 States and the District of Columbia. What, you thought they’d actually expect themselves to follow their own “plain language/ plain meaning” requirements? HA

Gymistokles on July 3, 2014 at 12:19 AM

We are going into birther territory, not because the issue has no merit but because of the implications of the failure/ fraud and what would have to be done as a remedy. Who has the stomach for this?

virgo on July 3, 2014 at 1:12 AM

Give no quarter. Obamacare must die.

leader4hru on July 3, 2014 at 2:03 AM

And even if there is a way to stop him by suing him over it, how will that stop him in time to prevent him from reaping the benefits at the polls on election day?

What this question implies is that, contrary to claims by conservatives, not only the majority of the public is for ObamaCare, but also there is no way to win the public back. If this is true, then the issue is ultimately lost.

However, Obama is routinely accused of implementing a partisan law that everyone hates.

Which is it?

PBH on July 3, 2014 at 2:27 AM

The only fix that’s available (unless His Majesty tries some executive gambit, of course) is for Congress to amend the statute…

Allah you and the rest who make these arguments are like children stomping their feet. Obama is a tyrant. Roberts is complicit in the tyranny. What do you think is going to happen on this issue, seriously?

The occasional Hobby Lobby case means nothing. The doctors, the lawyers, the insurance companies, the hospitals, etc have all bought in to Obamacare. Stop wasting web space on this crap.

doufree on July 3, 2014 at 3:43 AM

Buried in this story:

But the D.C. Circuit Court may see things quite differently, especially in light of recent Supreme Court opinions holding that the Obama administration has exceeded its authority and violated separation of powers.

In Michigan vs. Bay Mills Indian Community, for example, Justice Elena Kagan noted that “this court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address.

Some one should advise Ms. Kagan that this is exactly what Justice Roberts did—revised the context of the legislation.

Rovin on July 3, 2014 at 5:23 AM

Please feel free to correct me if I’m wrong on this BUT…aren’t the vast majority of those who have signed up for DumbassCare those who already had insurance (most of whom were quite happy with what they had) and lost it because it no longer met the requirements of the law?
 
Aren’t we talking about a relative few, a very, very small minority of voters who are benefitting from free or grossly subsidized healthcare? And if that’s the case…screw them. Overturn this monstrosity and be done with it.
 
trapeze on July 2, 2014 at 10:24 PM

 
Yep. Only 3.24 million people who bought Obamacare insurance were previously uninsured.
 
Per Tlaloc:
 
http://hotair.com/archives/2014/06/26/obama-on-climate-change-how-about-these-anti-science-conspiracy-theorists-in-congress-amirite/comment-page-2/#comment-8241950

rogerb on July 3, 2014 at 6:01 AM

I wish that pundits would cease their argument that the republicans in congress are afraid to lose voters if they stand up to Obama. That is always the excuse for their lack of action.

The facts are that they will gain voters if they stand up and fight.

The voters who are lefty supporters of Obama’s thug government will always vote for the democrat. The takers (those who live
off our tax dollars) will never vote for the opposition.

That said, can we now take a look at the possibility that many dems and repubs are cut from the same political cloth? Their main objective is to grow government and reap the benefits from the
resulting increase in power and monies for themselves and their cronies.

Amjean on July 3, 2014 at 8:08 AM

The only hope we have – because I have no expectation that the rule of law will be followed – is that the beautiful people up in DC (especially a few judges) realize that saving this piece of crap is no longer worth the effort.

The CBO refuses to score it – and what expert analysis from the benefit community you can find says that it will cost at least 2.5T – yep that’s trillion – over the next decade with healthy increases going forward. In essence, it will eventually swallow the federal budget. So financially, the law is unsustainable. And DC is beginning to realize that on a broader scale than you might think. In this case – actually ruling against the administration would save the feds a ton of money.

Administratively, the program is an abject failure. IT experts are realizing that there is absolutely no way at this time or any time in the forseeable future that this can be made to work. Simply put, there is no way that DC can make the law work. It is administratively unsustainable. This also is more widely known than the general public realizes.

These two things things provide an opportunity to revisit the ACA as nothing more than a federal high risk pool, provide similar tax treatment to health insurance for individuals and business groups, and strip out any federal regulation of the state insurance markets or the employer plans under ERISA.

Some in DC don’t want to admit this fact – and some liberals in high places in the business community have no desire to see this “signature achievement” overturned. But most of the sane people realize regardless of their sympathies that the ACA doesn’t work right now – and won’t ever work. Now we need to just overcome the political momentum that says we can’t get rid of this now, even though everyone knows it won’t work. The court has a chance to provide the environment where even the dem electorate – who will be the most angry about losing their subsidy – will be itching for something like what I suggest in the preceding paragraph. The only thing stopping it is the general political aura that this cannot be overturned.

Zomcon JEM on July 3, 2014 at 8:35 AM

Obama will issue an executive order.
Boehner will do nothing.
Next.

tpitman on July 3, 2014 at 8:49 AM

Sorry Eor, but if the DC Circuit nukes the ACA, you’ll see an immediate injunction pending SCOTUS review, which will probably happen after the mid-terms. I know you were hoping for a wedge issue. Sorry bud.

Immolate on July 3, 2014 at 9:11 AM

It’s the way the law was written, reviewed, debated, and passed.

rogerb on July 2, 2014 at 8:34 PM

What? This was debated? When? Where?

GWB on July 3, 2014 at 9:51 AM

I’ve got obama’s defense. The term “State” really refers to statism, which is what this fool is promoting. So when Congress uses State, it means the Federal govt “statism”. Now that’s believable.

Ta111 on July 3, 2014 at 10:18 AM

Nothing would be better than declaring our independence from this ill-begotten law.

crrr6 on July 3, 2014 at 10:19 AM

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