TEA PARTY PATRIOTS:
Unions Rally In Support Of ObamaCare Tax Credit (Quote by Kevin Broughton)
“Kevin Broughton, the communications director for the Tea Party Patriots, is suspicious that organized labor is paying much of the crowd for their attendance. “The other folks over here, they mind their manners, which you would expect if you were being paid to come out and protest,” Broughton claims. “They either don’t have jobs or their being paid by the SEIU or some of the other folks that have a vested interest in having their neighbors pay for their own health care.” Broughton also contends that their argument is all emotion and that the courts should only consider the facts.”
http://dailycaller.com/2015/03/04/unions-obamacare/
Supreme Court ruling could affect 300K in Mich. (Tea Party Patriots mentioned / Quote by Diana Reimer)
“But anti-Obamacare protesters said they wanted the court to uphold the language of the law and not leave it to the arbitrary interpretation of the Internal Revenue Service. The Tea Party Patriots held signs reading, “I didn’t elect the IRS” and “IRS control makes me sick.” “We’re here to uphold the rule of law,” said group member Diana Reimer of Lansdale, Pennsylvania. “Congress is supposed to make the laws and not the administration.”
http://www.detroitnews.com/story/news/politics/2015/03/03/supreme-court-ruling-affect-michiganians/24355273/
The Libertarians Who Got SCOTUS and Congress to Consider the Unthinkable (Tea Party Patriots mentioned)
“American Commitment founder Phil Kerpen, meanwhile, was stripping down to a shirt Tea Party Patriots had given him for Christmas. It featured a picture of ACA guru Jonathan Gruber in mid-sentence—mid-lie, probably—and the legend I’m with stupid. This was attracting photographers like a corgi riding on a dolphin. “I’ve actually experienced what few men experience,” Kerpen joked. “People are looking at my shirt, and I want to say: Hey, my eyes are up here.”
https://www.bloomberg.com/politics/articles/2015-03-04/the-libertarians-who-got-scotus-and-congress-to-consider-the-unthinkable
IRS Grossly Unqualified To Make Determinations About Software Related Exempt Applications (Tea Party Patriots mentioned)
“Somebody in the IRS must think that open source software is even icikier than the Tea Party. During the same period Tea Party applications appeared on BOLO lists and were held up interminably, the same thing was happening with applications from organizations developing open source software. Previously applications by open source organizations had sailed through. One of the better known open source organizations is The Linux Foundation which is exempt under 501(c)(6) like the NFL. Many of the Tea Party applications ended up being approved, including that of the flagship Tea Party Patriots Inc, but the open source groups have not been having such luck. Another denial just came out in Private Letter Ruling 201507025. Private letter rulings are redacted, but one of my sources indicated that the group involved was the LEAP Encryption Access Project. LEAP Director Elijah Sparrow confirmed that the ruling related to LEAP…”
http://www.forbes.com/sites/peterjreilly/2015/03/05/irs-grossly-unqualified-to-make-determinations-about-software-related-exempt-applications/
Martin Schram: How the GOP endangered its own security (Tea Party Patriots/Jenny Beth mentioned)
“Meanwhile, that same day, perhaps a better barometer of the future of the GOP was on display nine miles south of the Capitol dome, at CPAC, attended by thousands of primarily young conservatives. While the media’s big eye was focused on the weeklong parade of presidential hopefuls, the real future of the GOP may have been glimpsed at an afternoon panel session under CPAC’s red-and-white “Conservative Action Starts Here” banner. The audience of young conservatives was being urged to go home and start running for the smallest local offices, as a way of someday rising to control the GOP. Jenny Beth Martin, founder of the Tea Party Patriots, was applauded and cheered after she derided Obama’s immigration executive actions (where reforms weren’t attempted) and especially when she said of Obamacare, “We still have the opportunity to repeal that!” (The House has voted 56 times to repeal Obamacare.) But another panelist, Ned Ryun, founder of the American Majority, warned that Republicans have too often just been “the party of ‘No’ … we have to have solutions!” His sane warning was silently received.”
http://www.mcclatchydc.com/2015/03/04/258626/martin-schram-how-the-gop-endangered.html
Martin Schram: How the GOP endangered its own security
http://www.fresnobee.com/2015/03/04/4408299_martin-schram-how-the-gop-endangered.html?rh=1
Commentary: How GOP endangered its own security
https://www.indianagazette.com/news/opinions/commentary-how-gop-endangered-its-own-security,21621686/
HEALTHCARE:
Obamacare channels Orwell
“Toward the end of Wednesday’s oral arguments in the latest Obamacare case to make it to the Supreme Court, Donald Verrilli, U.S. Solicitor General, argued that the administration’s interpretation of the healthcare law was the most deferential to states. The argument, apart from coming from an administration that has consistently asserted a robust role for the federal government, was a bid to win over Justice Anthony Kennedy, a key swing vote, who raised concerns about the federalism implications of the suit. At issue in the case, King v. Burwell, are the subsidies that the federal government provides for individuals buying insurance through Obamacare. The text of the Affordable Care Act says subsidies are to go to people obtaining insurance through an “exchange established by the state,” but an IRS rule subsequently said subsidies would also apply to exchanges set up by the federal government on behalf of states. Those challenging the law argue that the IRS acted illegally, and that Congress intentionally excluded exchanges set up by the feds so as to induce states to do it themselves; if they didn’t, their residents wouldn’t get subsidies. Verrilli argued that the law’s text “is designed to afford state flexibility” and that the challengers’ interpretation would contradict this. He added, “It would be an Orwellian sense of the word ‘flexibility’ to use it in the manner that petitioners say the statute uses it, because it’s the polar opposite of flexibility.” The implication was that this would be preposterous. In truth, Orwellian semantics are a standard aspect of Obamacare, a law that’s named the “Patient Protection and Affordable Care Act” even though in reality it has triggered the cancellation of individual health insurance plans, narrowed choices of doctors and hospitals, and jacked up the sticker price of insurance. If you want to get a sense of how Orwellian the law actually is, just look at the section cited by Verrilli — 1321. It promises “state flexibility,” as he noted, but starts by instructing the secretary of Health and Human Services (a federal official) to “issue regulations setting the standards for meeting the requirements” for states creating exchanges, offering health insurance through the exchanges and managing risk in the insurance market. It also says the federal government can impose “such other requirements as the Secretary determines appropriate.” So any state that sets up an exchange must abide by a mountain of federal regulations and that it can only offer insurance policies that meet the federal definition…”
http://www.washingtonexaminer.com/obamacare-channels-orwell/article/2561075?custom_click=rss
How Quickly Can Republicans Get Blamed For How Badly Obamacare Was Written?
“The Supreme Court is busy considering weighty questions. Do laws mean what their plain language say they mean or can the government rewrite them at a whim? The rest of Washington was concerned with more important matters: how quickly can we blame the Republicans for whatever happens in the court case King v. Burwell? For the uninitiated, the justices are weighing whether the authors of Obamacare intended to provide taxpayer subsidies to people who bought their health insurance from the federal exchange, or did they mean to confine such subsidies to state-created exchanges as the text suggests? Hanging in the balance is 7.5 million to 9.6 million consumers whose Obamacare-mandated health insurance would suddenly become too expensive if they had to foot the entire bill themselves. When the law was drafted, at least some Obamacare supporters thought state exchanges would be the norm and only a few Republican outliers would need carrots and sticks like the potential loss of subsidies…”
http://dailycaller.com/2015/03/04/how-quickly-can-republicans-get-blamed-for-how-badly-obamacare-was-written/
A Congressional Off-ramp to a Patient-Centered Healthcare System
http://www.forbes.com/sites/econostats/2015/03/05/a-congressional-off-ramp-to-a-patient-centered-healthcare-system/
GOP Rumble Grows As Obamacare Legal Arguments Commence
“Republican lawmakers began presenting the political case against Obamacare Wednesday– just as lawyers began presenting their legal arguments on the law to the Supreme Court. The case of King v. Burwell hinges on a provision of Obamacare stipulating that only plans purchased through state-based exchanges are eligible for subsidies, which President Barack Obama has ignored by offering subsidies for plans purchased through federally established exchanges. Obama and his supporters contend that the restriction is a simple linguistic oversight, but lawmakers who participated in the law’s creation say it was very much intentional. Republican House Majority Whip Steve Scalise, who attended the legal arguments, said in a statement that, “The plaintiffs made very strong arguments that exposed how the IRS … usurped Congress’s authority to write laws and appropriate taxpayer money.” “Regardless of how people feel about Obamacare,” he opined, “no one wants to give the IRS the power to write laws. The court has the authority to stop this latest power grab by the Obama administration.”…”
http://dailycaller.com/2015/03/05/gop-rumble-grows-as-obamacare-legal-arguments-commence/
Supreme Court hears arguments over Obamacare funding
“Obamacare faces another serious challenge. This time the issue is whether the government is illegally handing out billions of dollars in subsidies to help Americans buy the new insurance. Jan Crawford reports.”
http://www.cbsnews.com/videos/supreme-court-hears-arguments-over-obamacare-funding/
King case raises practical concerns about Obamacare
“The Supreme Court usually deals with lofty constitutional questions, but the King v. Burwell arguments Wednesday were also grounded in some practical concerns. If the court upends Obamacare’s insurance subsidies in June, blocking them from federal-run insurance marketplaces under the Affordable Care Act, it could be too late for states to create their own marketplaces in time for next year. “In order to have an exchange approved and insurance policies on the exchange ready for the 2016 year, those approvals have to occur by May,” Solicitor General Donald Verrilli Jr. told the court Wednesday morning. The Obama administration says the health law allows the subsidies to be awarded in all the states regardless of who runs their insurance exchanges. The four individuals bringing the King lawsuit say that’s illegal and the court should block the subsidies for low and middle-income Americans if they’re shopping on a federal-run exchange instead of one spearheaded by a state itself. At stake are subsidies that 7 to 8 million Americans are currently putting toward health insurance plans. Many can’t afford the plans without the federal assistance. The Department of Health and Human Services has said it doesn’t have a way to get around a court ruling blocking the subsidies. But one of the court’s conservative justices suggested a potential solution: Delay blocking the subsidies until the end of 2015. “Would it not be possible if we were to adopt petitioners’ interpretation of the statute to stay the mandate until the end of this tax year as we have done in other cases where we have adopted … a statute that would have very disruptive consequences,” asked Justice Samuel Alito Jr….”
http://www.washingtonexaminer.com/king-case-raises-practical-concerns-about-obamacare/article/2561080?custom_click=rss
Attorneys on Obamacare: King v. Burwell hinges on tax subsidies
http://www.cbsnews.com/videos/attorneys-on-obamacare-king-v-burwell-hinges-on-tax-subsidies/
5 takeaways from ObamaCare case
“The Supreme Court on Wednesday heard oral arguments in a new challenge to ObamaCare that threatens to end insurance subsidies for millions of people. While oral arguments are not an accurate barometer of how the court will rule, a divide among the justices was clear, with the liberal wing largely backing the administration and conservatives speaking out in favor of the plaintiffs. The ruling in the case, known as King v. Burwell, isn’t expected until this summer, with the outcome likely to hinge on the votes of Chief Justice John Roberts and Justice Anthony Kennedy. In the meantime, here are five things to know about the oral arguments in the case.
1.) The chief justice stayed quiet – Spectators who were closely watching Chief Justice John Roberts on Wednesday didn’t hear much. The justice confirmed under George W. Bush was expected to be the most important voice in the arguments after his unexpected vote in favor of ObamaCare in 2012. But Roberts asked just one substantive question during the hour-long session, revealing no clues on his stance on the case. Instead, Justice Anthony Kennedy appeared to be the key conservative in the case, expressing some skepticism of the plaintiff’s argument.
2.) The court might not immediately eliminate subsidies – Both parties fear the massive insurance meltdown that could occur if the Supreme Court ruled to immediately strike down the subsidies. But Justice Samuel Alito said Wednesday that the court could give states a few extra months to comply before taking away the subsidies, perhaps until the end of tax season. “Going forward, there would be no harm done,” he said.
3.) Conservative justices say Congress wants to help – At least one conservative justice has been paying attention to the aggressive Republican effort to create a fallback plan in case states lose their subsidies. “If the consequences are as disastrous as you say, then yes, I think this Congress will act,” Associate Justice Antonin Scalia told Solicitor General Donald Verrilli. GOP leaders have put forward nearly a half-dozen proposals in the last month to address the potential loss of subsidies.
4.) The administration is not picking a fight over the plaintiffs’ legal standing – Within one minute of the arguments, Associate Justice Ruth Bader Ginsburg began arguing that at least some of the plaintiffs in case did not have legal standing to sue. But the administration’s lawyer, Donald Verrilli Jr., told the justices that he didn’t have evidence to prove that ObamaCare wouldn’t harm the plaintiffs, as some news reports have suggested.
5.) The administration isn’t blaming the legal challenge on a drafting error – Many ObamaCare supporters have chalked up debate on the four words in question in the law — “established by a state” — to a drafting error. But Verrilli said Wednesday that it was not the case. The language was “not the product of some last minute deal, it wasn’t the product of scrambling at the end,” he told the justices. He said the language had come out of a weeks-long markup by the Senate Finance Committee, which had even been covered by C-SPAN.”
http://thehill.com/policy/healthcare/234672-5-takeaways-from-obamacares-day-in-court
The Supreme Court cannot hide on Obamacare
“The Supreme Court, it would seem, did not want you to see what it was up to on Wednesday. The robed nine were hearing oral arguments in King v. Burwell , a legal effort by conservatives to dismantle Obamacare and probably the most politically charged case to appear before the high court since Bush v. Gore. But, as always, there was no video of the proceedings and, curiously, the court chose not to release same-day audio of the argument, as it did in Bush v. Gore and has done in other high-profile cases since then. I went to the argument, as I have for the last decade, to attempt to paint for readers a verbal picture of the atmospherics in the room, such as Samuel Alito’s eye rolls, Sonia Sotomayor’s hectoring and Clarence Thomas’s states of repose. But this time, court staff placed me in the back corner, three feet from the door; blocking my view of the justices were two red-velvet curtains, a marble pillar, another marble pillar, and a closed brass gate carved with images of acorns, oak leaves, dolphins, helmets and plumes, animal heads and the Ten Commandments. Ultimately, though, there will be no hiding what happened in that chamber Wednesday morning. Ninety minutes of lopsided argument in favor of the Obama administration’s defense cast significant doubt on what had been a plausible challenge to Obamacare’s legality. The conservative majority could still knock down the law, of course, but given the ambiguity exposed Wednesday, it would now be a breathtaking surprise for the justices to cause such massive upheaval — taking health-care immediately from 8 million and causing a death spiral for the rest of Obamacare — based on such a slender legal reed. The four liberal justices furiously picked apart the arguments of Michael Carvin, who had also argued, unsuccessfully, in a 2012 challenge to the health-care law. Alito and Antonin Scalia were not as aggressive as usual in their questioning of the Obama administration’s lawyer, and Chief Justice John Roberts was almost as silent as Thomas. Anthony Kennedy, perpetual swing vote, had some serious doubts about the argument against Obamacare…”
http://www.washingtonpost.com/opinions/the-supreme-court-cannot-hide/2015/03/04/f39883d8-c2af-11e4-ad5c-3b8ce89f1b89_story.html?wprss=rss_homepage
Hope for Obamacare Advocates?
“Will Justice Anthony Kennedy’s solicitude for states trump his antipathy to the Affordable Care Act and save the day for Obamacare? With all the usual caveats — it’s dangerous to read too much into random comments at oral argument, justices are apt to change their minds — that seems to be the better bet emerging from the argument Wednesday in King v. Burwell. Kennedy isn’t the most obvious candidate to back the administration. After all, he voted to strike down the individual mandate to purchase health insurance during the law’s last big test. As if there were any doubt about where the four liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) would come down, their questions made clear: Let customers on exchanges established by the federal government enjoy the same subsidies as those who buy on state-run exchanges. On the other side, Justices Antonin Scalia and Samuel Alito were similarly unconstrained about where they’re heading: the law says subsidies are available on an exchange “established by the state”; that language doesn’t cover federal exchanges; and if Congress didn’t mean what it wrote, it can clean up its own mess. Justice Clarence Thomas stayed silent, as usual, but he can safely be counted on to join them. That leaves Chief Justice John Roberts, who was uncharacteristically quiet. If I had to guess, Roberts is less than pleased to find this political hot potato back in the lap of a court he devoutly wants the public to see as nonpartisan. Further, having been identified, and assailed by conservatives, as the late-deciding fifth vote to uphold the Affordable Care Act last time around, Roberts wanted to avoid any soupcon of hand-tipping. On Wednesday, he was the Sgt. Schultz (“I say nothing! Nothing!) of justices — but probably happy, to the extent he might be inclined to side with the government again, to hear Kennedy inclining in that direction. After all, it’s a lot easier to be the sixth vote than the fifth. Kennedy’s concern involved whether prohibiting subsidies on federal exchanges would be unfair — not to citizens denied subsidies, mind you, but to states themselves. States, Kennedy noted, would be put to the coercive choice of either setting up their own exchanges or being stuck with the ensuing disaster. “From the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we’ll send your insurance market into a death spiral,” Kennedy told Michael Carvin, the lawyer representing four individuals challenging the federal subsidies. “It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there’s a serious constitutional problem if we accept your argument.” Kennedy’s point has contradictory implications, one tilting in favor of those challenging the subsidies, one in the government’s direction. On the pro-challenger side, he could find that (a) the law clearly does not provide for federal subsidies and (b) is unconstitutional because it effectively forces states to establish their own exchanges…”
http://www.realclearpolitics.com/articles/2015/03/05/hope_for_obamacare_advocates_125824.html
ObamaCare Subsidies Ruling May Hinge On ‘Coercion’
“If ObamaCare subsidies on federal exchanges survive their brush with the Supreme Court, it may be because the law is even more coercive without them. Chief Justice John Roberts, who saved the individual mandate by calling it a tax in 2012, has been seen as the swing vote who will determine whether ObamaCare remains viable in states without their own exchanges. But a second potential swing vote emerged during Wednesday’s oral arguments in the King v. Burwell case challenging the legality of tax subsidies issued to 34 states via the federally run Healthcare.gov. Justice Anthony Kennedy told plaintiffs attorney Michael Carvin: “If your argument is accepted, the states are being told, ‘Either create your own exchange, or we’ll send your insurance market into a death spiral.'” Because of other ObamaCare regulatory mandates — requiring insurers to take all comers and offer a rate without regard to one’s health — exchanges could be unworkable without subsidies. That’s because the population willing to pay the full cost of the policies would most likely be in disproportionately poor health — which could send premiums soaring. Kennedy’s point was that states opting not to set up an exchange could see their individual insurance markets more or less destroyed. The threat implied by such a reading of the law amounts to coercion, Kennedy said. That would require the court to “invoke the standard of constitutional avoidance” and try to find a plausible reading of the law that protects state rights. Hospital Stocks Rally – The possibility that a conservative justice could side with the Obama administration for reasons of federalism helped spark stocks of hospital companies, which benefit from providing charity care to fewer uninsured patients. Tenet Healthcare (NYSE:THC) and HCA (NYSE:HCA) both advanced 6%. But Kennedy sent plenty of mixed signals, at one point telling Carvin, “It may well be that you’re correct as to these words, and there’s nothing we can do.” The words at the center of the case limit the tax subsidies to eligible consumers through an “Exchange established by the State.” The Law Is The Law – In the view of the conservative challengers, spearheaded by the Competitive Enterprise Institute, “the plain language of the statute dictates the result.” That reading reflects the desire of the 2010 Congress that passed the law to provide a strong incentive for states to set up their own exchanges, Carvin argued. He also took issue with Kennedy’s suggestion that the law is less coercive with the subsidies than without, noting that the subsidies trigger the employer mandate penalties. “States are absolutely helpless to stop this federal intervention into their most basic personnel practices,” Carvin said. “The more intrusive view of the statute” is the administration’s. Solicitor General Donald Verrilli argued that the key word is “shall,” as in “Each State shall establish an American Health Benefits Exchange.” He contended that this implies each state would have a subsidized exchange, though the law allows states to stand aside and let the federal government do the work. “It would be an Orwellian sense of the word ‘flexibility'” to punish states for choosing that option, Verrilli said. The outcome could hinge on the meaning of “such.” The Health and Human Services secretary is empowered “to establish and operate such Exchange” when a state does not. Verrilli said “such” means that the federal government “shall establish a state exchange.” Justice Antonin Scalia wasn’t buying it: “How can the government — federal government establish a state exchange? That is gobbledygook.”
Kennedy questioned the idea that if there is ambiguity, then the IRS has the authority to make such a sweeping interpretation of the health law. “It seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here?”
http://news.investors.com/Politics-ObamaCare/030415-742049-supreme-court-obamacare-king-v-burwell-case-oral-arguments.htm
Did John Roberts Tip His Hand?
http://www.newyorker.com/news/daily-comment/did-john-roberts-tip-his-hand
Budowsky: Roberts will uphold ObamaCare
“In this “friend of the court” column, I suggest with 90 percent confidence that Chief Justice John Roberts, who remained virtually silent during oral arguments before the Supreme Court on Wednesday, will join a majority of justices to uphold the subsidy provision of the Affordable Care Act. Here is why: A decision to overturn the subsidy provision will violate the only rational interpretation of the legislative intent of the Congress that enacted the law, which was designed to incentivize and support consumers who signed up for insurance, regardless of the exchange those consumers employed to purchase the policies. It was not the intent of individual members of the House and Senate who voted for the law, or the legislative bodies that passed it, to discriminate against certain classes of consumers in ways that would destroy the law they enacted to provide nationwide — I emphasize nationwide — healthcare reform. I’ve worked for House Democratic leaders and senior senators and know a great deal about legislative intent. Republicans and conservative ideologues who oppose – ObamaCare have a right to their political and policy opinions. However, their assertion that Congress intended to embed into the law a discrimination to limit which consumers would be eligible for subsidies — a discrimination that would inevitably destroy the foundation of that law and ultimately the law itself — is inherently absurd and legally untenable. If the chief justice were to join a court majority in violating legislative intent, overturning the subsidies, creating a healthcare death spiral that would destroy the ObamaCare law, here is what would happen: Millions of Americans would lose their healthcare. Healthy consumers who signed up would abandon their insurance in droves, destroying the business model that Congress clearly intended when it enacted the law. Insurers would increase premiums for millions of Americans, in some cases dramatically, creating widespread financial hardship and gravely damaging healthcare for citizens with pre-existing conditions and for defenseless children covered only because of ObamaCare policies purchased by parents. Can Roberts and the other justices seriously believe that the Congress that enacted this law intended this draconian and destructive outcome, or that the Constitution demands it? Quite the contrary. If the Supreme Court were to destroy ObamaCare, it would inflict a damaging blow against an American economy that is painfully recovering from the most catastrophic recession and financial crash since the Great Depression. Can the chief justice and the other justices seriously believe that the legislative intent of those who enacted the law was to impose financial hardship on millions of Americans, wreak havoc that would plague major healthcare companies, create chaos and instability that would plague state governments across America, slow national economic growth and job creation and, by hurting so many poor and middle-class Americans, worsen the great wrong of economic inequality? I doubt it. If I am wrong, and Roberts and the other Republican justices overturn the subsidies and destroy ObamaCare in a party-line vote, the Supreme Court will become another Washington institution that loses legitimacy with a large number of citizens and falls into widespread public disrepute…”
http://thehill.com/opinion/brent-budowsky/234680-brent-budowsky-roberts-will-uphold-o-care
When the subject is Obamacare, never forget about Chief Justice Roberts
http://www.washingtonpost.com/politics/courts_law/when-the-subject-is-obamacare-never-forget-about-chief-justice-roberts/2015/03/05/e12b0ec2-c36e-11e4-ad5c-3b8ce89f1b89_story.html?wprss=rss_national
How Justice Kennedy Might Justify Saving Obamacare
“Justice Anthony Kennedy revealed Wednesday how he might justify a vote to save Obamacare, as the Supreme Court began hearing arguments in a case that could gut the law. “Perhaps you will prevail in the plain words of the statute,” he told Michael Carvin, the lawyer representing the administration’s challengers, according to The New York Times. “[But] there’s a serious constitutional problem if we adopt your argument.” Carvin is making the case that the government can’t subsidize plans purchased on Healthcare.gov, because the law states that only people who buy Obamacare “though an Exchange established by the state,” are eligible for subsidies. If the Supreme Court rules that those federal subsidies are illegal, than the 7 million enrollees currently subsidized by the Internal Revenue Service could be faced with plans they can’t afford, and the entire law would be crippled. The four liberal members of the court indicated strong support of the administration in the opening arguments, but will likely have to win the vote of either Chief Justice John Roberts or Kennedy…”
http://dailycaller.com/2015/03/05/how-justice-kennedy-might-justify-saving-obamacare/
Obamacare saved? Not so fast
One can read too much into Justice Kennedy’s questions.
“Obamacare supporters were cheered Wednesday by Justice Anthony Kennedy’s tough grilling of the lead attorney in the latest lawsuit — and the law’s opponents came away nervous.
That doesn’t mean the suspense is over and Kennedy will be the deciding vote to save the law. There’s still enough uncertainty about the outcome of King v. Burwell to guarantee that the survival of Obamacare will be in doubt until the Supreme Court rules at the end of June. During Wednesday’s oral arguments, Kennedy raised a “serious constitutional problem” with the plaintiffs’ argument that four critical words in the law — “established by the state” — mean the Obama administration can give subsidies only to Americans who get their health insurance through state-run marketplaces, not the federal one that serves 34 states through HealthCare.gov. Kennedy’s questions gave a big boost of confidence to Obamacare supporters, who insist that a reading of the full law shows it allows subsidies in all 50 states. Neal Katyal, a former acting solicitor general in the Obama administration, called it “an extraordinarily good day for the government.” White House press secretary Josh Earnest said the administration was “quite pleased.” Still, legal experts point out that both sides got tough questions, that Chief Justice John Roberts’ views are a big mystery, and that oral arguments aren’t always decisive in the Supreme Court, anyway. And conservative legal scholars say they saw signs that the court could still decide that the key phrase has to be read literally, which would badly damage the Affordable Care Act. Here are the main reasons the outcome is still in suspense: Kennedy asked tough questions of the Obama administration, too It’s not just the lead attorney, Michael Carvin, who got an earful from Kennedy. The justice also raised doubts to Solicitor General Donald Verrilli, who defended the law for the administration, about whether the Internal Revenue Service should be able to interpret the phrase so broadly. The administration, along with other supporters of the law, argue that if there’s any vagueness about what the statutory language means, a 1984 Supreme Court case called Chevron v. Natural Resources Defense Council gives federal agencies the authority to come up with a reasonable interpretation. In this case, that’s the IRS interpreting the health law’s language about subsidies, which are technically tax credits….”
http://www.politico.com/story/2015/03/obamacare-saved-not-so-fast-115774.html
Oklahoma’s response to Justice Kennedy
“In Thursday’s Wall Street Journal, Oklahoma Attorney General Scott Pruitt addresses the federalism concerns raised by Justice Kennedy at oral argument in King v. Burwell. Here’s a taste: Justice Kennedy was asking, if Congress did in fact condition ObamaCare’s tax credits on a state having set up an exchange, does that amount to an unconstitutional coercion of the states? In short: no. . . . there is no legal precedent for a finding of coercion based solely on the fact that a federal program does not work well when the states decline to assist in its implementation. This sort of “well, Congress did such a bad job that states have no choice but to step in and bail Congress out by acquiescing” argument is, as U.S. Solicitor General Donald Verrilli put it Wednesday, “novel.” That is precisely why the federal government never made this argument in any brief, and why Mr. Verrilli was quick to distance himself from it at oral argument. . . . The states are not children that the federal government must paternalistically “protect” from the consequences of their choices by rewriting statutes. In our constitutional system, states are free to make decisions and bear the political consequences, good or bad, of those choices. Declining to establish a state exchange allowed Oklahoma to voice its strong political opposition to the Affordable Care Act as a whole, as well as to make a statement that it wanted neither the large-employer mandate nor the individual mandate to have effect within its borders. That was the trade-off. Oklahoma declined the premium tax credits, but freed itself of those mandates, and that was a choice the state was happy to make. Of note, AG Pruitt filed the first lawsuit in federal court challenging the legality of the IRS rule at issue in King v. Burwell. His office also filed an amicus brief in support of the plaintiffs in this case. For more on the federalism issues raised by Justice Kennedy at oral argument, see this piece by Adam White, who was counsel of record for this amicus brief in support of the plaintiffs…”
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/04/oklahomas-response-to-justice-kennedy/?wprss=rss_national
Scalia Needles Roberts Over 2012 Obamacare Rescue During Latest Lawsuit Arguments
“Supreme Court Justice Antonin Scalia asked a pointed question about the court’s power to rewrite a law during oral arguments for the latest challenge against Obamacare. “But do we have any case which says that when there is a clear provision, if it is unconstitutional, we can rewrite it?” Scalia asked attorney Michael Carvin, who argued on behalf of the plaintiffs in King vs Burwell, a case about the legality of providing subsidies to Obamacare enrollees in states that did not set up health care exchanges. Carvin replied in the negative, as he needed to for the sake of blunting a critique from more liberal justices on the court, who suggested that if they accepted his argument that Obamacare only gives subsidies through state exchanges, that would be unconstitutional use of federal money to coerce states into doing what the federal government wants. Given how much the justices referred to the previous Obamacare challenge — “Did you win that other case?” Chief Justice John Roberts asked when Justice Ruth Bader Ginsburg tried to hold Carvin to a position he’d argued, unsuccessfully, in 2012 — it’s hard not to think that Scalia was needling Roberts a bit. Roberts, of course, upheld Obamacare’s individual mandate by construing it as a tax, which Congress has the authority to levy under the constitution, even though it was written in the law as a penalty, which Congress does not have the authority to create. “The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command,” as Roberts wrote in the NFIB vs Sebelius opinion. “The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”
http://www.nationalreview.com/articles/414941/scalia-needles-roberts-over-2012-obamacare-rescue-during-latest-lawsuit-arguments
Justice Scalia boosts Republican hopes in ObamaCare challenge
“Supreme Court Justice Antonin Scalia has given Republicans new ammunition in the fight over ObamaCare by endorsing the idea that Congress is certain to act if the court deals a blow to the law. The conservative justice contended Wednesday that lawmakers would move quickly if the court, in the case of King v. Burwell, were to strike down subsidies that are helping millions of people purchase insurance through the federal exchange, HealthCare.gov. Congressional Republicans had been making that very same argument in the run-up to the case, and say Scalia’s remarks should help draw attention to the multiple ObamaCare fixes that they have prepared. “With all of the fearmongering by the administration that things are going to be disastrous if the Supreme Court rules one way, Justice Scalia said, ‘No, Congress will act,’ ” said Sen. John Barrasso (R-Wyo.), who is working on a Republican ObamaCare plan. “So I was encouraged by that, because we are committed to doing that.”
http://thehill.com/policy/healthcare/234820-justice-scalia-boosts-gop-hopes-in-obamacare-challenge
New hope for GOP ObamaCare challenge?
http://thehill.com/policy/healthcare/overnights/234826-overnight-healthcare-justice-scalia-boosts-gop-hopes-in-obamacare-challenge
Four Ways Obamacare Can Survive the Supremes
“The chances of Obamacare surviving its latest legal challenge seem much brighter after Wednesday’s oral argument at the Supreme Court. For those who haven’t been following the case, at issue is whether the law allows the federal government to subsidize the cost of Obamacare coverage in states that chose not to build their own insurance exchanges — instead letting the federal government do it for them. The plaintiffs argue that a clause in the law says tax credits apply only to exchanges “established by the state,” precluding tax credits on exchanges run by the federal government. The Barack Obama administration says looking at the law as a whole shows that’s not the case. The justices’ questions offer some support for the law’s supporters. At this point the government has four paths to victory; the challengers have only one. The government’s first chance is remote: The court could send the case back to the lower court to investigate whether the plaintiffs have been injured — what’s known as having standing. The reality of their injury has been seriously questioned in the media and the justices also raised questions, but the court seemed eager to move on to the merits. The government’s second defense, and its primary argument, is more promising: If the court considers the entire text of the statute and not just a single phrase, it’s clear that Congress intended federally facilitated exchanges to effectively become the exchange in states that chose not to operate one themselves. There are more than 50 provisions of the law that don’t work if federal exchanges can’t grant premium tax credits. Today’s argument mentioned only a few, but made clear that the statute as a whole authorizes federal exchanges to grant tax credits. Today showed the government’s third route to victory could be even more persuasive to the court: Interpreting the ACA to force a state to operate its own exchange — under a threat of forfeiting tax credits for its citizens and risking the destruction of individual insurance markets — raises serious questions of unconstitutional coercion. The fact that the supposed threat was buried deep in the statute, leaving states unaware of it, makes this issue even more serious. Justice Anthony Kennedy, a likely swing vote, raised this issue repeatedly. Under what’s called the doctrine of constitutional avoidance, the court should interpret the statute to avoid this constitutional problem and uphold the tax credits. A fourth argument didn’t get much attention, but it’s another way for the government to win. If a statute is ambiguous, a court must defer to an administrative agency charged with interpreting that statute. If nothing else can be concluded from this morning’s argument, it is that Obamacare doesn’t unambiguously preclude the way the Internal Revenue Service interpreted the law…”
http://www.bloombergview.com/articles/2015-03-04/four-ways-obamacare-can-survive-the-supremes
Federalism and ObamaCare
Liberals discover state’s rights in a Hail Mary to save the health law.
“A closely divided Supreme Court heard arguments in the challenge to ObamaCare’s illegal subsidies on Wednesday, and the session spun off in an unexpected and provocative direction: To wit, several Justices suggested that the Affordable Care Act as drafted would unconstitutionally coerce the states. King v. Burwell turns on the statute’s plain text limiting health subsidies to those insurance exchanges established by the states, rather than the 36 run by the federal government as fallbacks. This condition for federal…”
http://www.wsj.com/articles/federalism-and-obamacare-1425513815?mod=rss_opinion_main
7 Reasons Why Obamacare ‘Federalism’ Won’t Lead Anthony Kennedy To Join The Supreme Court’s Left In King v. Burwell
“Today, the Supreme Court heard oral arguments in King v. Burwell, a case with significant implications for the future of Obamacare. Most of the justices’ questions proceeded along expected lines. Most notable was a series of questions by Associate Justice Anthony Kennedy, who questioned whether it would be constitutional for Obamacare to induce states to set up exchanges. If Kennedy’s fears are right—that federal subsidies for state-based exchanges are “coercive”—then he might side with the Obama administration in the case. But if you understand how Obamacare’s insurance markets work, it’s clear that Kennedy should side with Obama’s challengers. The ‘federalist’ argument advanced by Obamacare supporters. It was the biggest surprise to reporters who follow health care: Kennedy’s persistent questioning on whether state-based exchanges are “coercive.” The argument is that under Obamacare, the federal government is imposing mandates and regulations on a state’s insurance market, mandates that are unworkable if they aren’t accompanied by billions in subsidies. Said Kennedy: Let me say that from the dynamics of Federalism, it does seem to me that there is something very powerful to the point that…the states are being told either create your own exchange, or we’ll send your insurance market into a death spiral. We’ll have people pay mandated taxes which [they] will not get any credit on—on the subsidies. The cost of insurance will be sky-high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, [but] there’s a serious constitutional problem if we adopt your argument. A Yale Law professor named Abbe Gluck, who supports the ACA, has been the main proponent of this “federalist” argument. In January, Gluck co-authored an amicus brief filed before the Supreme Court making the case that the challengers’ “interpretation would result in a significant intrusion on the usual balance between the state and federal governments.” Gluck expounded on her theory in a Politico op-ed. If Obamacare conditioned exchange subsidies on the construction of state exchanges, wrote Gluck, that would be unfairly punitive against the states, decrying “the penalty the challengers would foist on the states—the loss of the subsidies and drastic consequences that would go with it.” Gluck admits that she and her fellow Obamacare advocates are susceptible to being called “fair-weather federalists,” or as the kids say these days, “trolls.” She’s right….”
http://www.forbes.com/sites/theapothecary/2015/03/04/7-reasons-why-obamacare-federalism-wont-lead-anthony-kennedy-to-join-the-supreme-courts-left-in-king-v-burwell/
Obamacare Case Is Not Life or Death
“Unless you think that conservatives are entitled to declare the Supreme Court illegitimate because of Roe v. Wade, then you should not make similar threats about a ruling that you deplore. As I said earlier, there are things even more important than Obamacare, and holding the country together is one of them. But I thought I’d take a minute to deal with an even more fundamental question: How sure are we that the Affordable Care Act is saving lives? At this point, the answer is “not very.” I think it’s quite possible that five years hence, the mortality rate charts will show a sharp inflection point starting around 2014. However, I also think it’s quite possible that five years hence, the mortality rate charts will show … nothing at all. Forget those eye-popping statistics we’ve all heard about how a lack of insurance costs tens of thousands of lives a year. When you look at a broad array of studies, the evidence is surprisingly mixed, with some studies showing large effects, and others showing no improvement in mortality. Two randomized controlled trials, the gold standard for medical research, have been done on the benefits of generous health coverage; both showed no significant medical impact from paying for people’s health care. Oh, you can pull out subgroups and say that hypertension got better among these folks, but there’s a risk with that sort of thing that surprised researchers are simply committing the Texas sharpshooter fallacy. Now, that doesn’t mean there’s no effect — the studies are hard to do, and even a very well done study (which both of these were) can show spurious effects simply by random chance. Moreover, it’s pretty clear that there are significant nonmedical impacts; people like having health insurance, and it protects them from the negative financial impact of large medical bills. This is not the most surprising result, either: If you pay for stuff that people buy, they will have more money in their pockets, and they’ll be pretty happy about that. But it is an impact. Whether you think that was worth spending $1 trillion on is an exercise that must be left to the reader. I know what you’re thinking: This must be baloney. Obviously, health insurance makes us healthier. How could it not? It buys us health care. All I can say is that history is filled with obvious things that turned out not to be so. Our intuitions are a poor substitute for evidence — and people’s intuitions are doing a simply enormous amount of lifting in the interpretation of the various studies about the benefits of health insurance. Let me suggest some ways in which our intuitions might be wrong. For starters, most people do not go without insurance for lengthy periods; most of the uninsured are without insurance for a relatively brief time, which may be too short to affect health outcomes. People without insurance might be finding other ways to access basic care, which is the sort that is most likely to work (experimental treatments sound marvelous, but the reason they’re “experimental” is that we don’t yet know whether they work). Too much health care can be as bad as too little, as every procedure or hospital stay carries with it a risk that something will go wrong, and these effects could cancel out the benefits of having someone pay for your hypertension drugs. People with good health insurance might take more risks (“the Peltzman effect”) because they’re no longer worried about catastrophic medical bills…”
http://www.bloombergview.com/articles/2015-03-04/obamacare-case-is-not-life-or-death
Unintentional self-parody alert: Dana Milbank predicts “social upheaval” if the USSC rules against Obamacare
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/05/unintentional-self-parody-alert-dana-milbank-predicts-social-upheaval-if-the-ussc-rules-against-obamacare/?wprss=rss_national
Law means what it says: Opposing view
“The King v. Burwell challenge to the Affordable Care Act at the Supreme Court presents a straightforward case of statutory interpretation. The question is whether the law authorizes the issuance of tax credits in exchanges established by the federal government. The statute is clear on this point. Tax credits are available in exchanges “established by the state,” and the federal government is not a state. Were there any doubt on this point, the law defines “state” to mean one of the 50 states and the District of Columbia. The Department of Health and Human Services is not a state. Agencies only have the authority Congress has delegated to them. Even if the IRS has the best of intentions, it lacks the authority to issue tax credits just because it believes this would be good policy or would make the statute work better. The Supreme Court has been clear on this point, and at Wednesday’s oral arguments the justices seemed unmoved by Solicitor General Donald Verrilli’s textual arguments. Asked to explain why Congress would use the phrase “established by the state” if Congress meant to include established by the federal government, the solicitor general had no compelling response. The IRS recognized this language was a problem before deciding to issue tax credits in federal exchanges. Faced with the unexpected reality that a majority of states had no interest in helping implement the health law, administration officials decided it was too important to follow the letter of the law, so the IRS issued a regulation that ignores the relevant statutory text. The King case has implications well beyond the particulars of the Affordable Care Act. Agencies are not free to rewrite the law. If Congress concludes it was a mistake to withhold tax credits in federal exchanges, there is but one solution: Congress must authorize tax credits in federal exchanges. The IRS cannot make this change through administrative fiat, nor should it be made through the courts…”
http://www.usatoday.com/story/opinion/2015/03/04/obamacare-supreme-court-challenge-oral-arguments-editorials-debates/24388443/
Protestors: SCOTUS hears ultimate test of Obamacare (pro-Obamacare)
http://www.cbsnews.com/videos/protestors-scotus-hears-ultimate-test-of-obamacare/
WH: ‘No Contingency Plan’ If SCOTUS Rules Against Obamacare Subsidies
“If the Supreme Court rules that only state-run exchanges may offer subsidized health insurance, there will be no “easy or obvious fix,” because the “Republican Congress” is incapable of “solving what should be a problem that’s easy to solve,” White House spokesman Josh Earnest said on Wednesday. Earnest said the Obama administration has no contingency plan if the Supreme Court rules against a key provision of the law: “It’s important for people to understand that there is no contingency plan that could be implemented that would prevent the catastrophic damage that would be done by essentially undermining the Affordable Care Act with an adversarial ruling on this.” “[T]here have been a number of questions that we’ve received about, like, ‘Well, you know, if the case goes against you, what’s the administration going to do,’ or, ‘What is the administration planning to do if that eventually comes about.’ And the truth is, is that there are no easy answers. There is no simple step, no obvious step, that anybody can take that would prevent this catastrophic damage from taking place. “We would see millions of people lose their health insurance, we would see — prices would likely go through the roof, and there’s not a whole lot, frankly, that the government could do about it other than Congress passing legislation to fix it. “But I think we’re all pretty realistic about the likelihood that that’s going to happen, because we have majorities in both the House and Senate that A, struggle mightily to do even the simplest, most politically popular things, like funding the Department of Homeland Security; but B, we also know that they have fought tooth and nail to try and undermine the Affordable Care Act from the beginning. The reason they have done that is not entirely clear to me, but that’s their position nonetheless. “”So, you know, I’ve never — I have not encountered anybody who has said, ‘Look, here’s an easy way we could avoid this problem,’ other than through the legislation path, which is frankly not one that’s available.” Earnest insisted that Obamacare is “working really well” as it is now constructed. By making some people pay more for insurance, including coverage for things they don’t want or need, the majority of subscribers are able to pay less…”
http://cnsnews.com/news/article/susan-jones/wh-no-contingency-plan-if-scotus-rules-against-obamacare-subsidies-0
Earnest: ‘No Contingency Plan’ If SCOTUS Rules Against Obamacare Subsidies
http://cnsnews.com/video/cnsnews/earnest-no-contingency-plan-if-scotus-rules-against-obamacare-subsidies
Hospitals struggle to plan during King v. Burwell wait
“Hospitals are just beginning to hash out contingency plans as the waiting begins for the U.S. Supreme Court to decide whether to end insurance subsidies in most of the country. Some of the financial gains that hospitals have experienced from having a greater number of insured patients may be erased if the court rejects the use of subsidies for individuals who purchase health plans from the federal exchange.
The loss of subsidies would affect about 7.5 million people in at least 34 states if the plaintiffs prevail in King v. Burwell. The subsidies offset nearly three-quarters of household premium costs. “The uncertainty and the instability make it difficult for systems just to plan,” said Mike Lappin, the chief administrative officer for Aurora (Wis.) Health Care. Nonetheless, the health system’s leaders will attempt to game out multiple scenarios in the months between Wednesday’s oral arguments and the decision expected in June…”
http://www.modernhealthcare.com/article/20150305/NEWS/150309938
Hospital stocks rise on Supreme Court hopes, could sink on ruling
http://www.modernhealthcare.com/article/20150304/NEWS/150309952
Obamacare: Stay Focused on Full Repeal
“Provide a temporary tax credit for the transition. Obamacare has eliminated choices for millions of families, suffocated patient-centered medical innovation, and moved the United States closer to European-style centralized planning. The Supreme Court heard King v. Burwell this week, and if it sides with the rule of law this June, we may be one step closer to a full repeal of Obamacare. Let’s keep our eye on the ball: Complete repeal is our goal and everything we do between now and the 2016 presidential election must strengthen our chances to accomplish this. Obamacare cannot be fixed and Republicans must not extend this disastrous legislation. We must be particularly strategic after a court case that is promising but also fraught with peril. The Obama administration, true to form, unilaterally rewrote the law, declaring that “state exchange” somehow also means federal exchange. Because of this lawlessness, people in states that rejected participation in Obamacare have received subsidies to buy insurance products that many did not want. (Millions of Americans lost the coverage of the plans they wanted to keep when Obamacare destroyed the individual market.) After listening to the oral arguments this week, I’m prudently optimistic that the court will strike down these illegal Obamacare subsidies. But here’s the administration’s next battle in our ongoing war: Government bureaucrats have written the fine print so that big insurance companies can drop their most expensive customers, such as those receiving chemotherapy. The administration is taking hostages, willing to let people lose coverage so they can run an attack ad featuring a six-year-old asking why Republicans are going to “kill my mommy over a typo.” Armed with the White House briefing room, many in the national media, and billion-dollar PR firms, the administration is looking forward to the politics of this hostage situation. Should Congress resist, the Left — after inflicting maximum pain on Republicans inside the Beltway — will move to a state-by-state strategy to pressure governors to adopt a state exchange so Obamacare subsidies can flow to the sickest patients in their states. States will feel pressure to opt into Obamacare — and stop the suffering. The nine states that are controlled by Democratic and Independent governors may be the first to fold. Republican governors would not be exempt. The pressure to expand Obamacare’s reach into deep red states will be devastating. Those in Congress who, like me, oppose Obamacare cannot sit by and let the governors twist in the wind. We must help them do the principled t