“Preposterous”: The Lethal Legal Threat To Obamacare That Could Land This Week And End It All
With all the headline grabbing going on over the SCOTUS Hobby Lobby decision, many pundits have not been paying much attention to another case set for a decision from the influential D.C. Court of Appeals as soon as this week—a decision that could, realistically, finish off Obamacare once and for all.
In Halbig v. Burwell, a challenge has been lodged by opponents of the Affordable Care Act who argue that the language of the law restricts government provided subsidies to state operated exchanges only—meaning that the premium subsidies being offered to qualified purchasers in the 34 states where the federal government is operating the healthcare exchanges, are illegal under the law.
The plaintiffs in the case explain their position as follows:
“The premium-assistance tax credit provisions of the PPACA clearly, consistently, and unambiguously authorize tax credits only in states that establish a health insurance “exchange” that complies with federal law. Specifically, Section 36B authorizes tax credits for the purchase of qualifying health insurance plans only in exchanges “established by a state under Section 1311…The IRS rule, by contrast, purports to authorize tax credits in Exchanges that are neither “established by the State” nor “established . . . under Section 1311.” This it cannot do. Because the language of the PPACA speaks directly to the question at issue, the IRS has no authority to provide tax credits in federal exchanges, nor is the IRS due deference in its interpretation of the Act.”
While it is generally agreed that the Congressional leaders who wrote the PPACA intended the premiums to be available via all health insurance exchanges—whether operated by the state itself, or the federal government in the instance of states not setting up their own exchanges—the plaintiff argues that the statutory language is clear and must be interpreted and enforced per the clear statement of the law.
If you think that those attempting to undo Obamacare are making a far-fetched argument—and a ruling from the Court of Appeals holding that the premium supports were only meant for state run exchanges would, in all likelihood, irrevocably tank the law—you are not alone.
Federal District Court Judge Paul Friedman held that the plaintiff’s claims were “unpersuasive” and that, since the federally run exchanges are created and operated on behalf of the states that chose not to do so, the federally operated exchanges were intended by Congress to be treated as state operated exchanges.
However, there are more than a few highly qualified legal experts who are not so sure that Judge Friedman got this right and believe that the result could be very different in the Court of Appeals.
Jonathan Turley—the widely respected constitutional law expert, television analyst and professor of law at George Washington University Law School—notes:
“Of all the challenges since the individual mandate, this is the one that presents the most mortal threat to the act. If this case were decided on the basis of the statutory language, the advantage goes to the challengers. If the court is willing to broaden its interpretation then the administration may have an edge. It depends entirely on how the panel structures its analysis.”
Put another way, the language pretty clearly says one thing even if the intent was something else.
So, should the D.C. Court of Appeals be willing to review the legislative history—and the Friend of the Court brief submitted and signed by the Congressional leaders responsible for drafting the law which purports to inform the Court of their actual intent—or give plain meaning to what the statute actually says?
As Sahil Kapur reports , two members of the three judge panel hearing the case appeared, in oral arguments, to have considerable sympathy for the anti-Obamacare point of view.
Points out Judge A. Raymond Randolph, appointed to his seat by President George H.W. Bush, “If the legislation is just stupid, I don’t see that it’s up to the court to save it. ” Meanwhile, Judge Thomas Griffith, a George W. Bush appointee, was a bit more reserved in his take on the case but did not fail to point out that there was a special burden on the Obama Administration (defending the action) to prove that the statutory language does not mean what it appears, on its face, to mean.
Only Democratic appointee, Judge Harry T. Edwards, took the position that the plaintiff’s claims were “preposterous”.
Should we get a decision in favor of the challenger here, Obamacare bashers might wish to withhold their enthusiasm as the Obama Administration will surely exercise its right to appeal the three judge panel’s ruling to the full D.C. Court of Appeals via an en banc motion.
Given that the full D.C. Court of Appeals includes seven Democratic appointees and only four Republican appointees, a vote of the entire court could well result in a very different decision.
By: Rick Ungar, Op-Ed Contributor, Forbes, July 7, 2014
“Calling The Shots”: Who If Not Tea Folk Control GOP Agenda?
We’re now in the less fertile summer plain of primary elections, with no contests this month other than the unfinished business of runoffs in Alabama and North Carolina on July 15 and Georgia on July 22. So it’s a good time to look back on what Republicans in particular hath wrought, and at TPMCafe Harvard’s expert on (among other things) the Tea Party, Theda Skocpol, suggests we should be looking at Congress rather than the primary outcomes for a sense of where things stand inside the GOP.
An obsession with toting up wins and losses in primaries completely misreads how Tea Party forces work, how they have moved the governing agendas of the Republican Party ever further right and maintained a stranglehold on federal government action….
Tea Party clout in and upon Republican officials, officeholders, and candidates is actually maximized by the dynamic interplay of top-down and bottom-up forces, both pushing for absolute opposition to President Barack Obama and obstruction of Congressional action involving compromises with Democrats. Tea Party forces are neither inside nor outside, neither for nor against the Republican Party in any simple sense, because they are sets of organizations and activists seeking leverage over the choices and actions of Republican leaders and candidates.
This dynamic long preceded the inauguration of Obama and the formal launching of the Tea Party Movement, but has surely intensified since 2009.
To see that the Tea Party remains supremely effective, just look at what Congressional Republicans are doing, or not doing. Eric Cantor’s sudden defeat sealed the GOP House’s determination to block immigration reform, but that reform was already effectively dead even before that one primary election happened. Republicans have pulled away from decades-old compromises to fund transportation systems, to support agricultural subsidies along with Food Stamps, to renew the Export-Import Bank that most U.S. business interests want continued. House and Senate Republicans are spending their time mainly on obstruction and media-focused investigations, anything to challenge and humiliate President Obama. In state houses, Tea Party-pushed Republicans are mainly passing anti-abortion restrictions and blocking the expansion of Medicaid favored by hospitals and businesses.
What do primary elections have to do with such effective agenda control? Not nearly as much as the basketball finals approach to tallying total wins and losses implies. In a way, unpredictable and somewhat random victories against fairly safe Republican power-brokers are the most effective outcomes for Tea Party voters and funders. Sure, the big Tea Party funders would like to have gotten a win for Chris McDaniel, their guy in Mississippi, and they are furious that they did not. But backing up and looking at the big picture, does anyone really imagine that nervous GOP officeholders are reassured that the Tea Party is dead or “under control” following a scenario in which old timer Thad Cochran had to raise millions for what should have been a taken-for-granted primary victory, and his allies had to orchestrate an all-out voter mobilization effort that even reached out to some African American Democrats? Cochran’s near-death sends a powerful message that loudly hewing hard-right on policy issues and obstruction is the way to go. Similarly, Eric Cantor’s huge defeat is even more frightening to many Republican politicians because it happened without big-money backing from the likes of Heritage Action.
Another way to put it is to ask whether there’s any issue on which the GOP has decisively pushed back on the Tea Party agenda? Yes, there was the decision to abandon the government shutdown last year, but even the Tea Folk understood that couldn’t go on forever. Other than that, it’s hard to see where and how the alleged “Establishment” primary victories are going to make any actual difference. Look at the Common Core educational standards issue, supposedly a huge priority for the business community that has given so generously to the Establishment cause. Chamber of Commerce beneficiaries Thom Tillis of North Carolina, Joni Ernst of Iowa and Jack Kingston of Georgia have all come out against Common Core. Who’s really calling the shots in the GOP, if not the radicalized conservative movement we call the Tea Party?
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, July 4, 2014
“Ayatollah Alito”: Still Not Sure That Elections Have Consequences?
Ayotallah Ali Hosseini Khamenei, say hello to your new comrade, Ayotallah Samuel Alito. Supreme Leader meet Supreme Court Justice.
And, no, regrettably, this is not hyperbole.
With his pronouncement in Burwell v. Hobby Lobby, Supreme Court Justice Alito signaled to the world that America has joined the world’s theocracies.
This extraordinary nation, borne of the Enlightenment 238 years ago to the day, will now cloak power, policy and even what qualifies as facts in the vestments of religious belief.
Because, as Justice Ginsburg noted in her dissent (p. 65ff), religious beliefs cannot be questioned either for substance or sincerity. If one, for example, asserts scientifically that IUDs prevent implantation of fertilized embryos, the scientific response would be to explain that their mechanism of action is to prevent fertilization (the sperm cannot ‘swim in a dry lake’ to reach the ovum to fertilize it).
But, if one makes the same claim religiously, then that is the end of it, even if it determines the application of public policy. The Court cannot question the assertion nor whether you believe it, and now, post Hobby Lobby, if you are empowered to act upon it, your religious beliefs determines secular policy for other people.
The Koch Boys, for example, can now claim a religious belief that carbon dioxide is not a heat-trapping gas. So, they can now violate EPA regulations so that their “religious freedom” is not burdened. Post Hobby Lobby, the Ayatollah Alito may declare that, e.g., a carbon tax is a “less restrictive” way to “impose” a science-driven public policy upon the Kochs’ religious beliefs about carbon. Will Congress, under the influence of the Koch Boys, pass such a tax? Of course not. Game… set… match… and planet.
God probably reminded Art Pope this morning that the minimum wage is a sin. Is there a “less restrictive” way to establish adequate wages for his employees, so we do not “burden” the poor sot’s religion? The Ayatollah Alito could choose between the Earned Income Tax Credit and workers’ “freedom” to bargain in the free market to establish wages. (I kid you not… listen to JFK’s rally for Medicare, especially 14:36-16:50.)
As previously described, right-wing politics is not just pro-business, it is itself a big business. The more vitriol, the more money the right-wing groups can raise, and it is protected as political speech. By contrast, when a commercial enterprise raises money from investors, or makes claims about its products, it is subject to fines and/or imprisonment for false and misleading claims.
But, that is just speech. Now, post Hobby Lobby, a simple claim of religious belief, blessed by Alito, can be used to thwart public policy so long as there is any “less restrictive alternative,” real or imagined, that can be referenced. It is a full-employment ruling for the Right Wing Belief Tanks, such as Heritage, to concoct the alternatives.
What does this mean for America? Whatever semblance of democratic government has survived its purchase as a result of the Citizens United ruling is now snuffed out by the counter-majoritarian (see, e.g., Bickel, The Least Dangerous Branch) Supreme Court. Does it, should it, matter if the “less restrictive alternative” is even viable? Who decides these matter of public policy? Our new Supreme Leaders.
It means that “closely-held” corporations will have competitive advantages against all the others as they will not have to comply with federal or state law because they are now deemed to be capable of holding religious beliefs about public policy and, if those beliefs conflict with public policy, the beliefs win.
But, it may also have consequences Alito did not consider. For example, if religious beliefs can now stay the application of public policy, will they remain forever free from scrutiny? This is quite different from advocating a public policy position grounded in religious belief. Hobby Lobby allows corporations to thwart enforcement of public policy based upon unchallengeable religious belief.
Moreover, since corporations can now, apparently, hold religious beliefs, as creations of the State, does their very existence not now violate the First Amendment’s Establishment clause? The State, after all, provides corporations with special benefits such as limitations on personal liability, licenses to operate, and so forth. If such entities can themselves have religious beliefs of any kind, has the State not helped establish these religions?
Such considerations will, of course, require the return of some enlightenment to the Supreme Court.
One can almost hear the Founders weeping.
Still not sure that elections have consequences?
By: Paul Abrams, The Huffington Post Blog, July 3, 2014
“The Majority Has Ventured Into A Minefield”: Here Are The Highlights Of Justice Ginsburg’s Fiery Hobby Lobby Dissent
On Monday morning, the Supreme Court finally released its much-anticipated decision on the Hobby Lobby case, a decision that lived up to expectations by being split along ideological lines (the court’s five conservatives overruling its four liberals) and severely weakening Obamacare’s birth control mandate.
Also living up to expectations? Liberal Justice Ruth Bader Ginsburg’s blistering dissent, which excoriated the court’s majority for its ruling, describing it as a “radical” decision “of startling breadth” that would have chaotic and major unintended consequences. You can read her dissent in full here (it starts at page 60) but we’ve also compiled some of its best, key parts.
Ginsburg opens with a bang, immediately describing the decision as one that will have sweeping consequences:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.
She frames the decision as one that denies women access to healthcare, rather than as one that upholds religious liberty:
The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.
In a similar vein, she rejects that the birth control mandate should be seen as an act of government coercion, describing it instead as one that provides women with the ability to make their own choice:
Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.
She affirms her belief that religious organizations and for-profit corporations serve fundamentally different purposes and have fundamentally different rights (and throws some shade at the majority in the process):
Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. … The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.
She claims that the majority has actually undermined the very principle, religious freedom, it claimed in its ruling to have upheld:
Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.
She writes that the majority has pushed the Religious Freedom Restoration Act past its original intent:
In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
By: Elias Isquith, Salon, June 30, 2014
“The Senate Comity Brigade Was Wrong”: Democratic Activists Urging Filibuster Reform For Presidential Appointments Were Right
I wrote a few days ago about how the Supreme Court’s decision to bar recess appointments made with less than a 10-day break in Senate proceedings increases the importance of controlling Congress.
But it also proves again that Democratic activists urging filibuster reform for Presidential appointments were right, and the status-quo-ante comity-obsessed Senators were wrong.
Now the Democrats who supported changing the rules are rightly taking plaudits for their success:
Democrats say the decision Thursday to rebuke Obama’s 2012 appointments to the National Labor Relations Board has made their change to Senate rules seem remarkably prescient. That change made it easier for the Senate to confirm Obama’s nominees, transforming recess appointments — a tactic to get around the chamber’s hurdles — into something of a relic.
That shift has already allowed Senate Democrats to squeeze through several nominees who might have been defeated under the old framework.
“Clearly this president has faced more opposition for even routine appointments, let alone important lifetime appointments like the judiciary. I’m sorry we had to change the rules and it’s created some pain in our Senate that’s still there,” said Senate Majority Whip Dick Durbin (D-Ill.). “But there had to be a way for this president to lead.”
The language used by Durbin here is still odd. It has “created some pain” in “our” Senate? Too often, the language used by Senators to describe the upper chamber is reminiscent of a private drinking club or children’s clubhouse. It isn’t. Whatever advantage there might have been in the past to friendly interactions between Senators across party lines to accomplish national goals has long been erased by hardline partisanship.
That’s largely because movement conservatives largely purged northern Rockefeller Republicans from their ranks, and because the old Dixiecrats who liked New Deal policies as long as they didn’t benefit minorities too much are gratefully a relic of the past. So on most issues not related to national security, there’s frankly very little reason for Senators to “reach across the aisle” anymore.
The clubby comity so prized by Senators now serves little purpose beyond the worst kind of bipartisanship on behalf of wealthy corporate interests and military contractors. It would be far better for Senators to worry more about how well their own views match those of their constituents, than how well they get along with one another.
By: David Atkins, Political Animal, The Washington Monthly, June 28, 2014
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 