Below is my column today in the Los Angeles Times on a little discussed case that presents a far greater threat to Obamacare than did Hobby Lobby. The Hobby Lobby case is a huge blow for the Administration in terms of one of the most prominent provisions of the Act and recognizing religious rights for corporations. However, it is more of a fender bender for the ACA. Halbig could be a train wreck of a case if it goes against the Administration. We are expecting a ruling any day and the panel is interesting: Judges Harry T. Edwards (a Carter appointee), Thomas B. Griffith (a George W. Bush appointee), and A. Raymond Randolph (a George H.W. Bush appointee). In oral argument, Edwards was reportedly highly supportive of the Administration’s argument while Randolph was very skeptical. That leaves Griffith. It could go 2-1 either way, though in my view the interpretive edge goes to the challengers for the reasons discussed below. This case however is largely a statutory interpretation case, though it has the same separation of powers allegations of executive overreach that we have seen in other recent cases.
Now that the Supreme Court has issued its ruling in the Hobby Lobby case, the legal fight over the Affordable Care Act will shift a few blocks away to another Washington courtroom, where a far more fundamental challenge to Obamacare is about to be decided by the powerful U.S. Court of Appeals for the D.C. Circuit. Indeed, if Hobby Lobby will create complications for Obamacare, Halbig vs. Burwell could trigger a full cardiac arrest.
The Halbig case challenges the massive federal subsidies in the form of tax credits made available to people with financial need who enroll in the program. In crafting the act, Congress created incentives for states to set up health insurance exchanges and disincentives for them to opt out. The law, for example, made the subsidies available only to those enrolled in insurance plans through exchanges “established by the state.”
But despite that carrot — and to the great surprise of the administration — some 34 states opted not to establish their own exchanges, leaving it to the federal government to do so. This left the White House with a dilemma: If only those enrollees in states that created exchanges were eligible for subsidies, a huge pool of people would be unable to afford coverage, and the entire program would be in danger of collapse.
Indeed, the Halbig plaintiffs — individuals and small businesses in six states that didn’t establish state exchanges — objected that, without the tax credits, they could have claimed exemption from the individual mandate penalty because they would be deemed unable to pay for the coverage. If the courts agree with them, the costs would go up in all 34 states that didn’t establish state exchanges, and the resulting exemptions could lead to a mass exodus from Obamacare.
The administration attempted to solve the problem by simply declaring that even residents of states without their own exchanges were eligible for subsidies, even though the law seemed to specifically say they were not. The administration argues that although the statute’s language does limit subsidies to residents of places with exchanges “established by the state,” that wording actually referred to any exchange, including those established by the federal government. In January, a district court judge upheld that interpretation, allowing the subsidies to continue.
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.
The D.C. Circuit Court is expected to rule any day now on the Halbig case, and supporters of the Affordable Care Act are growing nervous. In January, an Obamacare advocate described the Halbig case to a reporter for the Hill as “probably the most significant existential threat to the Affordable Care Act. All the other lawsuits that have been filed really don’t go to the heart of the ACA, and this one would have.” And in the intense oral argument before the D.C. Circuit Court, the administration seemed to struggle to defend its interpretation.
If the ruling goes against the White House, it’s hard to overstate the impact. Without subsidies, consumers in 34 states would face huge additional costs and, because of those costs, potential exemptions from the law. And voters — a substantial percentage of whom have never liked Obamacare — would be further alienated from the Democratic Party just in time for midterm elections.
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.
The administration’s loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court.
Jonathan Turley is a professor of law at George Washington University and has testified in Congress on the executive orders under the Affordable Care Act.
July 1, 2014 – Los Angeles Times
Also yesterday, the SCOTUS turned down an appeal and let stand a 9th Circuit ruling that the law to ban so-called Gay Conversion Therapy is constitutional despite challenges from conservative groups that it violated the First Amendment rights of therapists. The 9th Circuit ruled that such therapy to make people “un-gay” by licensed counselors was outside the mainstream of science and subject to regulation.Sadly it doesn’t apply to private counselors and clergy who engage in this religious based foolishness. The case is Pickup v. Brown . New Jersey has passed similar legislation and other states are expected to follow suit.
http://balkin.blogspot.com/2014/06/hobby-lobby-and-politics-of-recognition.html “So, the Court has traded an easily administrable bright line (for-profit corporations versus not) for an ambiguous, future-litigation-inviting test (“closely held” enough versus not). Other than that, what did Hobby Lobby accomplish exactly? It doesn’t move the needle much—maybe none at all, if the administration behaves as the Court suggests—on the question of how many women will actually get coverage for contraceptives with no co-pays. (Most women have it, but quite a lot do not, either because they’re uninsured, or because they still have “grandfathered” pre-ACA employee plans, or because their employer is too small.)
But this case was never really about health policy. It isn’t really even about the ACA, except peripherally. This case is about the politics of recognition: it is about recognizing conservative religious claims that (a) contraceptives are different from other forms of health care (an issue the Court somewhat finesses by suggesting that immunizations and so on “may be supported by different interests”), (b) religious people’s “conscience” deserves great deference and priority in the public sphere, certainly a higher symbolic priority than women’s health, and (c) perhaps most specifically on point, that religion is not something people do on their own time, in their own churches, but rather, is a way that apparently even large for-profit businesses may conduct their affairs—and if they choose to do so, society must find ways to accommodate their “full participation in the economic life of the Nation” (p.46). None of these—neither (a), (b), nor (c)—is really a legal claim. These are political claims. But this is high politics, not low politics. These are claims about how our nation is constituted and the place of religion in it.”
“H.R. 676, though introduced in 2003, initially received little attention; with the June 2007 release of the Michael Moore documentary Sicko, which focuses on the status of health care in the only developed country without universal health care, interest in the Act was renewed.[14][15] The DVD edition of the film includes a segment (Sicko Goes To Washington) promoting the bill.[16][17][18]
In 2009 the bill was reintroduced and renamed from the United States National Health Insurance Act to the United States National Care Act, a reflection of the fact that the bill provides health care instead of providing health insurance. Health care was a major part of Barack Obama’s campaign promises, and while he admitted that only a single payer system would provide universal coverage, the plan favored by Obama would be to increase insurance coverage instead. However, town hall remarks by Obama have indeed included support for a single payer system, particularly during his 2003-era pronouncements.[19] The bill was reintroduced in 2013.[1]”wikipedia House republicans have no plans to hear the bill. Most republicans think single payer is too socialistic and will not vote for it although it seems to work okay in Canada.
The threat is to women not to Obamacare as such. How can you miss this, professor? Here is Cory Robin at coreyrobin.com, which I hope you will allow to be posted because it is essential that as many of us who can understand this, understand this:
On a day when the conservative majority on the Supreme Court takes direct aim at women and workers, I thought I’d quote these last lines from The Reactionary Mind:
Conservatism has dominated American politics for the past forty years….Consistent with this book’s argument about the private life of power, the most visible effort of the GOP since the 2010 midterm election has been to curtail the rights of employees and the rights of women. While the right’s success in these campaigns is by no means assured, the fact that the Republicans have taken aim at the last redoubt of the labor movement and the entirety of Planned Parenthood gives some indication of how far they’ve come. The end (in both senses of the word) of the right’s long march against the twentieth century may be in sight.
Also from The Reactionary Mind, on the private life of power:
One of the reasons the subordinate’s exercise of agency so agitates the conservative imagination is that it takes place in an intimate setting. Every great political blast—the storming of the Bastille, the taking of the Winter Palace, the March on Washington—is set off by a private fuse: the contest for rights and standing in the family, the factory, and the field. Politicians and parties talk of constitution and amendment, natural rights and inherited privileges. But the real subject of their deliberations is the private life of power. “Here is the secret of the opposition to woman’s equality in the state,” Elizabeth Cady Stanton wrote. “Men are not ready to recognize it in the home.” Behind the riot in the street or debate in Parliament is the maid talking back to her mistress, the worker disobeying her boss. That is why our political arguments—not only about the family but also the welfare state, civil rights, and much else—can be so explosive: they touch upon the most personal relations of power.…
Still, the more profound and prophetic stance on the right has been Adams’s: cede the field of the public, if you must, stand fast in the private. Allow men and women to become democratic citizens of the state; make sure they remain feudal subjects in the family, the factory, and the field. The priority of conservative political argument has been the maintenance of private regimes of power—even at the cost of the strength and integrity of the state….
Conservatism, then, is not a commitment to limited government and liberty—or a wariness of change, a belief in evolutionary reform, or a politics of virtue. These may be the byproducts of conservatism, one or more of its historically specific and ever changing modes of expression. But they are not its animating purpose.
Neither is conservatism a makeshift fusion of capitalists, Christians, and warriors, for that fusion is impelled by a more elemental force—the opposition to the liberation of men and women from the fetters of their superiors, particularly in the private sphere. Such a view might seem miles away from the libertarian defense of the free market, with its celebration of the atomistic and autonomous individual. But it is not. When the libertarian looks out upon society, he does not see isolated individuals; he sees private, often hierarchical, groups, where a father governs his family and an owner his employees.
Employers should not be REQUIRED to pay for health insurance at all, let alone any specific form or portion of health insurance. If we had a healthy economy and an unfettered market, employees would be able to quit an employer who did not offer what they wished to have, and move to an employer who did. Rather than passing laws to force employers to do things, we should be trying to create a healthier, more competetive economy.
We don’t have slaves any more, though, not indentured servitude. If the workers at Hobby Lobby want their birth control to be paid for they should go get jobs at a store which provides insurance that includes free birth control. Suing their employer to force them to do what they, the employee, wants them to do is stupid.
Annie,
Single payer sounds great, but I fear that it will ultimately lead to a two tier system of health care where the masses have one level of care and amount of doctors, and those that can afford supplementary insurance will have another. I’m in the mid to upper middle class and could see myself being stuck in a place where single payer (government) isn’t quite what I’d like for my family, but supplementary is expensive enough that it burdens my monthly budget. Doctors of course are going to go where the money is, and those with levels above basic will undoubtedly pay more.
If we’re going to go single payer, it can’t be government run health care. It should be a single clearinghouse for all insurance, with standard forms and standard requirements. Let the clearinghouse get it to the correct company. Regulate it nationally (state insurance regulation is silly in my opinion). We’ll have a better result if we keep the government out of the daily chores and have them in an oversight role that it is much better suited for.
Let’s hope we don’t regain the trophy we lost with the passage of the ACA … the only significant nation in all civilization without universal health care for all citizens.
We don’t want to follow the VA health care model.
Jim – “I agree and … We should be seeing tons of green gecko, talking pigs and Flo commercials”
On second thought, I’ve changed my mind.
Free market insurance for all, choices for everyone.
This post personifies what makes this blog great. Practical information that probably 99% of the population is clueless about. I give it 99 because the LA Times has a pretty good circulation. If your piece was on the sports page it would have been read more. I read the LA Times online but I love getting the hard copy when I’m in SoCal for the winter. It’s a very good paper. IMO the best in covering all topics from US and International news, business, sports and entertainment. They doesn’t do the salacious horseshit in entertainment, but the substantive.
It has become apparent this President was a spoiled child. I read his books before many did. I am locked in w/ Chicago and came to know him as a state senator. I really liked a lot of what he wrote, but my analytical skills said to me, he may have been indulged as a child, overcompensating for his lack of a father. I saw Obama yesterday saying he would use Executive Orders on immigration. It was like a spoiled brat having a temper tantrum even though he had been put in time out for doing that just a while ago. When I would be assessing someone I investigate I would try and visualize what they were like as kids. It was invaluable in understanding them as adults. My gut told me in 2008 Obama was not Presidential material. But, I went w/ my heart. Live and learn, at least hopefully we do.
The Blow to Obama and the lawless character in the White House discussion looks past the more important case for civil liberties in America and the World. In the consolidated cases of Riley and Wurie last week, the unanimous Supreme Court issued a striking opinion which will be talked about for decades after the blow job story about Hobby Lobby has faded.
The next issue on the table after the warrantless cell phone/smartphone cases is the NSA. The invasion of your privacy, and our privacy on this blog, is the biggest issue on the Constitutional horizon. There is a case styled ACLU v. Clapper which is in the Second Circuit Court of Appeals and has been briefed. A federal district judge in NY had dismissed the claims of the plaintiffs. Follow this case. If you Google Search: ACLU vs. Clapper, the websites come up and all of the pleadings and briefs can be accessed.
This government spying on your private records preceded Obama and will continue long after he has pulled out like his father should have. I suggest that we focus on the privacy issues and the NSA privacy issues in particular.
The unanimous opinion written by Justice Roberts is landmark. We had a dog once named Riley who would not hunt. This dog will hunt. Follow the ACLU v. Clapper case as it moves towards the Supreme Court.
Was health coverage a mess before ACA? Yes. It is even a bigger mess after ACA. The Supremes did the right thing in their Hobby L case. Universal Health coverage should be the goal and policy of this government. Forcing this policy decision on businesses and individuals was the wrong way to go about this.
And please stop calling it Obama Care as Pelosi and Reid are more to blame for this law than Mr. O.
http://www.pnhp.org/facts/what-is-single-payer
Medicare for All, single payer.
@ JONATHAN TURLEY….
My deepest regards and respect goes out to you and your efforts to
reign in this dangerous LAWLESS character in the White House……
You are a true American.
Bailers77 – “Or better yet, admit that the employer model for health insurance is broken, and change it to an individual model so people aren’t tied to their employers choices and prices. It would lower cost for business and be portable for the employee. That’s what needs to be done.”
I agree and it should also be private not govt. run. We should be seeing tons of green gecko, talking pigs and Flo commercials all fighting for the chance to insure us.
Sounds like a significant enough case to go to the en banc court before the Supremes either way the panel decides.
Halbig Mission Creep
JT stated, “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”.
Officials confessed that illegal immigrants had been “accidentally” steered from state’s low-income Medicaid program and instead were enrolled in Obamacare in violation of the law. Oopsie.
Uninsured illegals won’t face the consequences that American citizens will face if they don’t obtain health insurance. Such “nonexempt individual[s]” must “maintain minimum essential coverage”
— that is, pay for government-approved insurance that could be more expensive and cover more services than the person wants — “or make a shared responsibility payment”, that is, pay a fine
— or “tax” as the Supreme Court designated the fine.
Holmes, it is not a blow to our democracy. It’s a refreshing change where the courts are stepping in and helping restore our democracy. I agree with what I’m assuming your view is, that birth control should be universal. But that doesn’t mean we can just pass laws and regulations that are not grounded in law in order to satisfy our desires and what we think is “right”. That’s not law, that’s despotism.
The justices opened the path to providing BC through other means. HHS should push for regulations that require all insurance companies to provide it as a cost of doing business. Then it’s not a line in a brochure somewhere, it’s an overhead cost that doesn’t show up and and businesses aren’t paying for directly. Treat it like they would office paper. Or better yet, admit that the employer model for health insurance is broken, and change it to an individual model so people aren’t tied to their employers choices and prices. It would lower cost for business and be portable for the employee. That’s what needs to be done.
I will agree with the language which the author employs about this being a huge blow job to the Obama Administration but health care is one of those things that all people need and some day down the road all people will come around to the notion that they need to get together or continue to be segregated off and taken for a ride. No puns intended.
Here is a relevant song from Randy Newman:
[music]
Doctor, Doctor, what you say?
How bout letting me out today?
Ain’t no reason for me to stay…
Cause everybody’s far away.
Get me back on my feet again!
Back on my feet again!
Open the door!
Set me Free!
Get me back on my feet agaaain!
—end
And the thing about a closely held corporation telling their employees that they cant use rubbers: When places like Hobby lobby have all their women employees knocked up, they will wish they hadn’t.
But we went back to the Hobby Lobby store locally and went in the bathroom and there was a condom machine on the wall with a sign on it which said: “For Heretics Only!” We did not know what that kind of tick was so we put in two quarters and nothing came out– so we got screwed. Went to the boss to complain and he said: “Went in dumb, come out dumb too. Hustlin round Atlanta in your alligator shoes”.
Then he said that he served up a great blow to Obama. I said, “Yeah, that’s what I read on the blog this morning.”
The weatherman said on the news that there was a big blow a coming. I said: “You don’t need a weatherman to know which way the wind is blowing.”
Its all relevant.
Hobby Lobby is a HUGE BLOW against democracy and our secular way of life.
Single payer has always been the way to go.