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
How about we demand the Congress gets up off their lazy obstructing a$$es and do their jobs? Or IS their job to obstruct, thereby FORCING the President into executive action? How devious is it to obstruct a President for years and years and then complain about Presidential overreach? Machiavelli couldn’t have done a better job.
Annie – the President is never forced to sign anything.
Bob, Esq:
No JT is a purest, in my view. I agree in the main with his legal analysis but I’m more pragmatic. Obama is about as much of a monarch as you are. He’s constantly constrained by Congress from doing anything productive and some would say that’s the way it is supposed to work under separation of powers doctrine. Not me. The supreme virtue is action and if Congress won’t cooperate the President still needs to lead and get essential things done.
Mespo: “I see your hand up! You conservative, you. Better make sure the cure isn’t worse than the disease.”
Monsieur Villefort,
Must one be a conservative if one opposes His Majesty Obama continuing to violate the separation of powers doctrine?
Does this mean Jonathan Turley is a conservative?
annie, Yep. Fact Checking is needed.
Bob, Esq.
I see your hand up! You conservative, you. Better make sure the cure isn’t worse than the disease.
Just like the false claim that Medicare patients are having trouble finding doctors.
http://www.forbes.com/sites/howardgleckman/2013/12/18/there-is-no-shortage-of-doctors-willing-take-medicare-patients/
Annie and SWM – here is an article that is a little newer.
http://www.newsmax.com/Newsfront/obamacare-insurance-preferred-doctor/2014/04/15/id/565752/
SWM, I knew that claim was baloney the first time Karen posted it, lol.
Hobby Lobby should never have been brought. It is unconstitutional for the government to takeover or operate any business or industry such as those of education, charity and healthcare.
Business can do whatever business wants to do.
Business is to be free from governmental interference regarding issues such as abortion, birth control, discrimination or any other form of intervention. Constitutional American business always had but one criterion, whether it is profitable.
If one takes the time to read the words of the Founders in their writings. the Preamble, Constitution and Bill of Rights, one discovers that citizens are to be free (i.e. “blessings of liberty”) while government is limited to security and infrastructure.
Justice, Tranquility, Defence, General Welfare,
The “blessings of liberty” “for ourselves.”
Government intervention, intercession and interference in the lives of citizens has introduced infinite complexity that government will never be able to resolve. Government never had any form of right to tell people whom to marry, whom to love or whom to do business with.
The Constitution has been hijacked by profiteers in the legal, tax preparation and lobby industries who find them lucrative beyond belief. In Mexico, there are drug cartels. In America, there are legal cartels.
The Preamble, Constitution and Bill of Rights were always enough for Americans. It has been the onslaught of litigious “victims” as represented by Constitutional profiteers ever-willing to argue a “point” that has perverted and corrupted the Constitution and American governance.
Government is limited to security and infrastructure and has no constitutional basis for interfering in any business for any reason.
The imamates have taken over the asylum.
“ObamaCare!” What a name. What does it mean or imply? Do you folks who use that term wish to imply that the notion of socialized medicine is attributed to the guy from Kenya? Of course, the President has adopted the name for his notion of the program of some sort of socialized medical care. I don’t blame him for adopting the name that bigots use to denigrate the program. Bigots? You ask. Yeah. Many folks hate it that a half white guy is President. When you southerners say he is Black then I say he is half White. Daddy might have been Black but daddy was not around to raise him. Mommy was. He is basically an American! Y’all need to buck up. Or tell Buck to quit doing his usual duties.
Al – Obama long ago threw the white side of his family under the bus.
A lot of people have been keeping Halbig in their crosshairs for some time. This is the case that can ruin Obamacare.
http://www.latimes.com/business/hiltzik/la-fi-mh-boycott-20131212-story.html “You may have heard recently that seven out of 10 California doctors were “boycotting” the state’s Affordable Care Act exchange, known as Covered California.
At least, you’ve heard it if you’ve been following right-wing news sources such as Fox News, which is alive to the irony that so many physicians in “deep-blue California are rebelling against the state’s Obamacare health insurance exchange and won’t participate.”
Like every other mention of this statistic, the Fox story hangs it on Dr. Richard Thorp, a rural internist who is president of the California Medical Assn.
In the news business, this yarn would be classified as “interesting, if true.” But there are a few problems with it, starting with: It’s not true.
In fact, according to Covered California, the only source with verifiable numbers, some 58,000 doctors, or more than 80% of the state’s practicing physicians, will be available to enrollees in the exchange’s health plans.
Help! Lost a post!
Why do 75% of doctors in CA not accept Obamacare policies?
Why is the CA doctors association adamantly opposed to Obamacare, because its doctors cannot afford to keep their doors open for $25/doctor visit?
Guess it’s a mystery. 🙂
Laser – false logic.
Already our laws prevent polygamy and human sacrifice.
The naiveté of suggesting that the VA is a great single payor model, which caused the deaths of dozens of vets because they wanted their turnaround to look better than it was!
Al and SWM:
Actually, it’s been determined that FDR extended the 15 year depression by 7 years.
Here is a paper by 2 UCLA economists from 2004. Prophetically, they say, when asked if the current recession could drag on, “We found that a relapse isn’t likely unless lawmakers gum up a recovery with ill-conceived stimulus policies.”
That was 10 years ago, in 2004.
http://newsroom.ucla.edu/releases/FDR-s-Policies-Prolonged-Depression-5409
“In an article in the August issue of the Journal of Political Economy, Ohanian and Cole blame specific anti-competition and pro-labor measures that Roosevelt promoted and signed into law June 16, 1933.”
“High wages and high prices in an economic slump run contrary to everything we know about market forces in economic downturns,” Ohanian said. “As we’ve seen in the past several years, salaries and prices fall when unemployment is high. By artificially inflating both, the New Deal policies short-circuited the market’s self-correcting forces.”
Sound familiar? Kind of like inflating minimum wage to $15/hour?
SWM: The Republicans haven’t been very effective, have they? The House only has 2 year terms, so Representatives take campaign promises very seriously. And Republicans who swept the House promised to repeal Obamacare. At least by taking all of these votes, they solidify the fact that Obamacare falls squarely at the feet of Democrats, although Dems are finally breaking ranks now that their jobs are in jeopardy.
Republicans fail at communicating issues clearly and getting their message out. The mainstream media is just a mouthpiece for Democrats, so they need to find other avenues.
And Republicans will lose all their gains if they continue Immigration Reform. Their constituents don’t want it, but corporate donors do for the cheap labor. Our economy is still in a recession, by many accounts. It has been admitted that unemployment has fallen because people just gave up looking for work. And it has been discovered that the vast majority of new jobs went with illegal aliens.
It’s a basic right of every country to decide how many immigrants they can absorb without draining their resources. And they get to decide who they don’t want – such as drug runners, cartel members, pedophiles, and rapists. People immigrate here every day from all around the world. And yet it’s for some reason considered unfair or rude that our nearest neighbors obey the law like everyone else. And it’s become a game. All you have to do is get past border security, and then you get a free pass. Our laws only count unless you are successful in breaking them. And the Dream Act enticed parents to send their kids unaccompanied across the border. Obama claimed he just found out about the flood of unaccompanied children, and yet, there is a bid from last year where the government estimated we’d have 65,000 unaccompanied minors come over, which was more than double what we had last year. Illegal immigration is a nonviolent crime – and it often accompanies Welfare fraud and other benefits frauds.
Make it impossible to immigrate her illegally, and fix any problems and inefficiencies in the legal immigration system. For example, it’s very disruptive for people on work visas to have to return to their home countries periodically while their visas get renewed, a process that takes months. I’ve worked with people who had to do that. Legal immigration needs to be the only option.
And when our economy is flailing, we need to reduce our immigration accordingly. How is our government meeting its responsibilities when it deliberately increases exponentially the people competing for the same jobs? How about when it erects signs in AZ that it is unsafe for American citizens because of drug cartels? It’s like we’ve just ceded vast amounts of land to Mexican drug cartels and are useless at defending our own borders.
It’s ironic, because if someone from South American illegally immigrates to Mexico, they are immediately thrown in jail and then deported. And yet Mexico lecture us on deporting illegal immigrants. Oh, and that reminds me, it’s also been discovered that Obama has been counting “turnarounds” in his “record deportation #s.” A turnaround is when someone from Mexico didn’t intent to cross the border, and tells the guards he just wants to turn around. Unlike Mexico did with our marine, they just let them turn around, but their #s are counted as “deportations.” In actuality, Bush deported more than Obama did, and Clinton deported most of all.
Sorry, the correct spelling for spelling, does not include a u letter instead of an e letter after the p. So, when you p … oh, never mind.
Al, You spoke some truth.
Sorry, the correct spulling is: fleas.