The Obama Administration previously filed its Motion to Dismiss in the challenge by the United States House of Representatives v. Burwell. As many of you know, I am lead counsel in the action. The Obama Administration is seeking to block the court from hearing the merits of our Complaint and below is our filing today in defense of the right of the House of Representatives to be heard in the federal court. The case is before Judge Rosemary M. Collyer of the United States District Court for the District of Columbia.
The filing concerns “standing” and the right of a house of Congress to appear in a federal court. In deference to the Court, we will confine our specific responses to our filing today before Judge Collyer.
I am honored to be on this brief with a brilliant legal team from the General Counsel’s office of the United States House of Representatives, including General Counsel Kerry Kircher, Deputy General Counsel William Pittard, Senior Assistant General Counsel Todd Tatelman, Assistant Counsel Eleni Roumel, Assistant Counsel Isaac Rosenberg, and Assistant Counsel Kimberly Hamm.
We remain confident of both the standing and the merits of this historic challenge by the House of Representatives.
Jonathan Turley
Lead Counsel
Here are today’s filings: Opp’n to Mot. to Dismiss (Feb. 27, 2015) (ECF No. 22)
Isaac,
That is exactly what I expected; there is simply no logical explanation for the establishment of individual state exchanges IF the financial incentive would be available through the federal exchange. Pretending the state exchange was to placate the 10th amendment crowd or that they would provide a “secondary” marketplace to satisfy the private choice constituency is absolutely laughable.
That unique American “phenomena” of keeping everything local is not a shortcoming but rather the strength of our federalist system. Redundancy in government however is a feature of the progressive administrative state and that IS anathema to anyone concerned about securing the rights of the states and the people.
A central feature of progressivism is that it must be sold on a lie because no liberty-loving individual would buy its truth. The truth about the ACA is it is a horrible law. It was sold on lies and will die on its truth. The fact is the tax credit was bait to get the states to set up exchanges. If they chose not to set up the state exchange then the feds would withhold the tax credit feature and hang it around the necks of the GOP-led state governments. 34 states didn’t take the bait and the last I checked, the GOP gained governors in the last election. Apparently those states weren’t buying what Gruber was selling.
Me too Issac. . . We are getting solar powered panels on our log house when we build it. I love to work with wood and I want a wood working shop to make stuff and maybe sell at the local flea market. I want a garden, chickens, a barn and a round pin and hopefully a covered arena. I would also like to raise goats and sell them at market. We have solar powered wind mills all over the pan handle and not only are they huge & ugly, they don’t generate that much energy. We are all gunned up with rifles, shot guns and more guns, to hunt and protect ourselves. No HOA, no mortgage, we have no credit cards. I also want chickens for fresh eggs. I think the closest neighbor is about a mile down the road, but not many. Been thinking about it for awhile but lately I realize that it might be the best way to go to get away from crowds, disease and too many cars. I also want a huge fireplace. I’m sure the crowd will eventually catch up to us but hopefully not for awhile. 🙂
@happypappies ~ thank you! 🙂
Regarding all this talk of getting off the grid, I am planning for solar, wind, battery, emergency generator powered warehouse style building with complete workshop on the main floor and rooms hung from the trusses. No, H O A, no permits, no immediate neighbors, just a building with raw land around for ten to fifteen acres or so and the occasional barbecue of goat, lamb, or salmon. I’ll send out invitations.
Olly
I have lived in the US since 1987. One of the phenomena peculiar to Americans, and a luxury that has costs Americans are prepared to pay in dollars, lower public education results, along with almost any other basic government institution, other than those unique to the federal condition such as military, air traffic control, etc. is local government or ‘States’ Rights’. There is no advantage logistically to having both state and federal education systems but because Americans seem to believe that it is anathema to what it means to be American to not control locally as much as possible, there is a redundancy of administration and confusion and contradiction resulting in a wanting public education system. This is also true with the illusion of consumer choice regarding such issues as health care insurance.
So, to get to the point, it makes no real financial sense to do a lot of things American. However this is not uniquely American. The provinces administer health care insurance in Canada, unlike France and other European countries where it is centrally administered. The ACA is a first step in many steps to streamlining the system by pooling participants premiums in less than 1,200 companies, to fund insurance for all. The first step is to include everyone. The next step will be to style the system after medicare, medicaid, or something akin to the system in Canadian provinces. There will always be discrepancies between liberal and conservative state governments in the US, just as there are in Canada. It makes more sense to administer the system on a state level, or group of states level, yet have it adhere to universal guidelines.
The incentive is ideological as well as practical. The idea of a base coverage where no one will be refused is the foundation for a successful and cost effective medical insurance system. The option of a second tier for unique situations satisfies that aspect of choice for those that can afford more. Under the previous system, not only could millions not afford more but they could not afford any.
One more incentive is that the brief history of the state administered health exchanges has shown that logistically they faired better at the beginning than did the federal exchange. There, three incentives: financial, logistical, ideological.
Isaac,
I miss many things but the fact you are STILL dodging a basic question is not one of them. I’ll try again:
If a state could save the cost of setting up their own exchange and get EXACTLY the same benefits by using the federal exchange then WHY set up a state exchange? Where is the incentive?
@Olly ~ lol 🙂
@happypappies ~ my husband is a retired AirForce Major and AA Captain. He majored in Ag/Econ and after flying over our country most of his life, he knows the land pretty good and grew up in Iowa. It’s in his blood. We are going to have a log cabin built on it and raise grass fed cattle. I’m over the city life. 🙂
Jettexas
Sounds like a win win and that you are really rarin to go and I wish you all the luck in the world. Sounds like a plan for sure. 😉
Olly
What you miss is that the ACA is a response, albeit a flawed and fought against for political reasons response, to what most Americans want, to be out from under the yoke of the for profit, private, parasitical, health care insurance stranglehold. Before ACA the costs of medical insurance had been skyrocketing and discrimination was the norm. Doctors complained of being denied payment for treatment because of technical and administrative snafus on the part of their clerks.
Example. A patient is referred to a specialist by the GP and the insurance company accepts the referral and approves a ‘bundle’ of several-let’s say 4-visits. The specialist requires the patient to visit five or six times and the clerk in the clinic fails to have the insurance company approve the additional one or two visits-typically less expensive as follow ups. The insurance company, in this case Aetna, refuses to pay the doctor. The doctor bills the patient through an independent billing company. The independent billing company threatens the patient with legal action, destruction of credit rating, etc. if the bill is not paid. The patient signed a promise to pay regardless of whether or not the insurance company pays. The patient either pays the doctor for work that is covered under insurance and the insurance company get off with this scam; or the patient contacts the doctor and explains that, yes the patient signed a ‘contract’ to pay the costs of the procedure but a contract is null and void due to fraud and/or negligence on either part. The doctor’s office was negligent in not requesting additional appointments before scheduling them. The patient is therefore not held responsible. The patient is not part of the doctor’s administration. This happened once to me and once to my wife. The insurance company calmly explained that they do not backdate visits and that it was a matter of procedure only.
So, if this happened to us twice, how many times has it happened to everyone. Friends of mine who are doctors complain that they need four administrators for every medical practitioner, and still this garbage happens. The ACA is a first move to stop the parasitical private health care insurance industry from scamming, not serving. Take a trip down newspaper memory lane for endless examples.
Regarding your criticism of my remarks on Americans’ desires/demands to have their local governments control their lives before and above the central federal government, do some research and read some newspapers and you will find many, many, arguments that mirror my comments. The usurping of local rights by the federal government is a shade of most of the political overtones spouted by the ‘Live free or die’, ‘Don’t tread on me,’ advocates in the US. The right of the individual to be able to choose by having direct access to health care insurance is an illusion that never existed and never will exist under private, for profit, health care insurance.
Regarding your criticism of my statement that if Obama had not factored in exchanges through individual states the opposition would have nailed him for this, two responses: Regardless of what Obama did or does, the opposition will attack him and his policies-this has not only been apparent but stated clearly, in print, by members of the opposition. Secondly, not offering the individual states the opportunity/formula/equation to administer the ACA would have surely been a weapon wielded by the opposition and most Americans would have, without a single rational thought, jumped on board that criticism.
Sorry Jettexas.
Jettexax,
LOL! By the time I got to that paragraph I was already chuckling. 😀
“The reason for the state exchanges is the desire of Americans for state control of their residents affairs.”
I’m glad you led with this sentence because I did not need to read any further.
You see that mindset is progressive fantasyland. Most Americans that pay attention to this sort of stuff want neither federal or state control of anything; especially when it comes to health care. What they want is to wake up tomorrow and NOT have to be concerned that the access to medical care they have today will be any different tomorrow.
The entire post is a dodge of my question. The simple fact is the ACA used the state exchange mandate as a weapon to force the states to implement this unpopular law by setting up their own exchanges to make the tax credits available. The problem for the progressives is 34 states didn’t buy in. Oops!
@Issac ~ You lost your argument on this paragraph! I was listening until this.
“If Obama had not offered the states the right/opportunities to set up their exchanges then the right wing nuts in and out of the government would have made that an argument”
Olly
The reason for the state exchanges is the desire of Americans for state control of their residents affairs. In Canada the provinces administer health care insurance while adhering to federal oversight. This results in medical insurance sized to the economic and political bents of the specific provinces. For example in provinces with liberal or Democrat leaning residents copayments might be less and provincial financial participation might be greater. The health care insurance funding comes primarily from federal taxation but also from provincial taxation. This respects the governments of the provinces or as intended with the ACA the states.
If Obama had not offered the states the right/opportunities to set up their exchanges then the right wing nuts in and out of the government would have made that an argument.
This first move is to slowly phase out private, for profit, parasitical, unnecessarily expensive health insurance. If the funding came from the federal as well as the state governments and the state government administered it this would satisfy the formula of state’s rights along with the advantages of federal taxation.
The private sector health insurance industry could occupy a second tier as they do successfully in Canada and other more advanced countries.
It might be added that in the states that set up their own exchanges are to be found the greatest success and the least problems with implementing this approach. With those states that opted out came the load on federal systems that caused the initial problems which have been almost completely fixed.
States like Florida with its criminal governor whose interests in private health care insurance is evident with his founding of Columbia HCA, a company that stole hundreds of millions of US taxpayers dollars by defrauding the Medicaid and Medicare systems, show the reasons for states like Florida opting out of the state exchange programs and taking federal dollars in the form of subsidies directly from the federal exchange. Rick Scott is not only a part of the problem he is a creator of the problem. He continues to own and run Solantic, a private clinic system that is directly tied into the private health care insurance system.
The bottom line is do you leave health care insurance up to the parasites and criminals like Rick Scott, or do you include this universal cost into the taxation system where everyone contributes. We have been experiencing the one. When Canada changed Canadians experienced the other and then augmented it with the private sector. This is the best combination, not one or the other.
Keep in mind this is not about medical treatment. This is about unnecessary costs through insurance monopolies that set the premiums, drive up costs with redundant administration, and deal with our health on a ‘what the market can bear’ philosophy. There is no competition as the 1,200 private parasitical insurance companies in the US are all underwritten by a half dozen global giants. The choice factor should be separated from the need factor through a two tier system.
@Airdog, sadly you are correct. I hope it changes in 2016.
To be clear, a CR is NOT an appropriation per se, however signed off on…it is a continuance for 95% of prior period funding en mass.
Jettexas….no specific CR need be passed for the executive branch to shift funds from one place to another…it is built in to the structure of CR’s. I’ve worked under them and had to abide them, even when I knew it was 100% unintended, Constitutionally or otherwise by appropriation.
It IS the main reason we must cease using them. They are meant ONLY for short term periods, say not more than a month, however, we’ve operated under them completely for going on 7 years now. The government, both Executive and Congress, relies upon the general ignorance of the rest of us to get away with it.
Nice try; 4 words, that’s just laughable.
Why craft a law requiring 50 state exchanges but give the states the choice to say no thank you and simply use the federal exchange instead? Is it a state jobs program? If my state could save the cost of setting up their own exchange and get EXACTLY the same benefits by using the federal exchange then WHY set up a state exchange? Where is the incentive?
@happypappies ~ I know right! I didn’t feel owned until the last 6 years. But the past two years, I feel like I’m drowning. I feel like I own nothing because I worry it could be taken at any minute.
We’re going to move to west Texas, already bought a bunch of land and build a log cabin and live off of the land as much as possible. Going to have cattle and already have two horses. Waiting for my kids to graduate college. I’ve had enough of living too close to the big city, especially after the Ebola scare and one was in my town. Homeowners insurance just keeps going up and up, to the point of that and taxes, is more than my actual mortgage payment.
In January, Obama changed the rules on being able to buy ranch/farm land with a house on it on a agricultural loan. You can still buy land with a agricultural loan but if it has a house on it, you have to go through Freddy Mac/Fanny Mae now. It’s ridiculous how much the government is trying to control and get their grubby hands on agricultural land now. The EPA is already trying to control all of Texas water too. It’s getting scary. Yep, I’m going Wyatt Earp on them! 🙂
Jettexas
I did something like that in my 40s in Missouri but got ripped off. Be very careful about the land being okay and so forth. Good luck
Five points to ponder (Washington Post ‘5 myths) (That dirty commie rag)
1. Congress made a mistake when it wrote the Affordable Care Act.
Advocates on both sides have referred to the language at issue as a “glitch” or a “drafting error” by Congress. After the ACA passed in 2010, opponents of the law seized on this so-called error when they started to look for a way to invalidate Obamacare. Meanwhile, some supporters of the law decried taking away health insurance from millions of Americans based on a “typo.” But now neither side is treating the part of the law before the Supreme Court as a mistake; instead they are battling it out over what those words mean and why they are in the law.
The act’s challengers argue that Congress included those words as a way to push states to establish their own exchanges by threatening to withhold tax credits from their citizens — and that this “threat” was necessary to secure the crucial vote of then-Sen. Ben Nelson (D-Neb.). But Nelson has gone on record saying that is absolutely false.
The Obama administration has explained that the act makes tax credits available to all Americans who need them to afford health insurance. It says the law’s reference to exchanges “established by the state” is simply a term of art to make clear that exchanges — even those run by the federal government in states that didn’t set up their own — are to be administered at the state level, not as a single national marketplace. The authors of the law, as well as the state legislators who implemented it, say they never understood that the subsidies would be applied only to state-based exchanges.
2. A ruling against the tax credits would suggest that the Affordable Care Act is unconstitutional.
The last time the ACA was before the justices, they confronted a rigorous question of constitutional law. This time they’re addressing a narrow question of statutory interpretation, not the constitutionality of the entire act. However, as the health-care law’s defenders describe in briefs filed with the court, a ruling against the tax credits would devastate the law so completely that it would have an effect similar to a ruling striking down the law.
This is because there is no easy fix for a court ruling gutting the ACA. Even though Congress could address any problems created by a ruling against Obamacare, that’s unlikely to happen. Conservatives, including congressional Republicans, are so hostile to the law that fixing it would be nearly impossible. There is a reason the law’s opponents are treating this case as repeal by another name.
3. This battle pits states against the federal government.
Despite challengers’ claims that they are defending states’ rights, their interpretation of the law is less state-friendly than the law itself. They argue that Congress’s intention was to force states to either establish exchanges or deprive their citizens of tens of billions of dollars. But the authors of the law have explained that they never made such a threat — they certainly wouldn’t have hidden it in such an obscure provision — and none of the states viewed the law as issuing such an ultimatum.
This is what everyone involved with the ACA, whether in Congress or in the states, whether for or against the law, understood, which is why you see briefs from more than 100 state legislators and 22 states and the District of Columbia supporting the nationwide availability of tax credits. Indeed, the theory that Congress intentionally put those four words in the statute to force the states to set up insurance exchanges wasn’t even thought up by opponents of the ACA until months after the law passed. What the law actually does is give states the choice of setting up their own insurance marketplaces or letting the federal government run the state-level exchanges for them.
4. The health-care industry wants the ACA challengers to win.
Some think that business interests want the law to fall. But everyone involved in the health-care system — hospitals, insurers, doctors, nurses and others — strongly supports the widespread availability of tax credits. The credits are good for business and the economy. A brief filed by small businesses in support of the ACA explains how the availability of affordable health insurance, via the exchanges, encourages entrepreneurship and economic opportunity.
On the other hand, if the Supreme Court sided with the ACA challengers, it could substantially disrupt the health-care industry, creating what experts have called a “death spiral” in the market. A brief filed by a trade association representing the health insurance industry warns that limiting tax credits to individuals who live in states that set up their own exchanges — which would exclude residents of 34 states — would cripple the insurance market.
5. The case pits the conservative justices against the more liberal justices.
Conservative lawyer John Yoo has described this newest challenge to the ACA as a way for Chief Justice John G. Roberts Jr. to “atone for his judicial sin” of upholding the health-care law three years ago. And Michael Carvin, the lawyer for the ACA’s challengers, has suggested that he thinks he has the votes of the five conservative justices. But the chief justice certainly doesn’t view his role as doing the Republican Party’s bidding, and he has emphasized that he doesn’t want the court to be engaging in partisan politics.
The last time the court considered the health-care law, it wrestled with fundamental questions about the role and power of the federal government under the Constitution, and ended up sharply divided. But this case can and should be decided based on long-accepted principles of statutory interpretation. If Justice Antonin Scalia follows his own maxim that “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” he should rule to uphold the tax credits. Same with the other justices. Legal scholars from across the ideological spectrum — including the former solicitor general under President Ronald Reagan — have weighed in to support tax credits being available to all Americans.
Independent judges applying straightforward legal principles should easily conclude that the Affordable Care Act provides financial assistance to all Americans who need it, regardless of who administers the insurance marketplace in their state.
I don’t recall a CR being passed by both houses to fund Obamacare out of the Treasury, unless I’m missing something. And. . . . .
“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
— U.S. Constitution, Article I, section 9, clause 7
A continuing resolution, or CR, is legislation in the form of a congressional joint resolution when a fiscal year is about to begin or has begun, to allow federal agencies and programs to continue to operate at current funding levels through a fiscal year.
A continuing resolution must be passed by both houses of Congress and signed into law by the president.