In confronting the growing challenge of China, as with Japan in the 1980s and other challengers in the…
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Rubio: Beat China via Free Trade and Passing Trans-Pacific Partnership, Not Self-Destructive Protectionism

In confronting the growing challenge of China, as with Japan in the 1980s and other challengers in the past, the easy and simplistic response is to advocate protectionism.  But America remains the most prosperous and innovative nation in human history on the basis of free trade, not protectionism.  If closing borders to trade was the path to prosperity, then North Korea would be a global exemplar.

On that chord, Senator Marco Rubio (R - Florida), set to give a much-anticipated foreign policy speech on the campaign trail today, offers a refreshing commentary in today's Wall Street Journal entitled "How My Presidency Would Deal With China."  In his piece, Rubio advocates free trade and passing the Trans-Pacific Partnership as effective tools for confronting China, resisting the…[more]

August 28, 2015 • 09:52 am

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Jester's CourtroomLegal tales stranger than stranger than fiction: Ridiculous and sometimes funny lawsuits plaguing our courts.
Oklahoma Challenges IRS Interpretation of ObamaCare Subsidy Print
By Ashton Ellis
Thursday, February 14 2013
If Oklahoma’s case is successful, ObamaCare’s insurance mandates and penalties would be effectively nullified in the Sooner State. Other states would likely follow suit.

There seems to be no end to the interpretive jujitsu government officials are willing to employ to save ObamaCare from its poorly written self. 

The newest example comes from the Internal Revenue Service. 

Under the terms of the Patient Protection and Affordable Care Act (i.e. ObamaCare), the IRS is charged with accounting for an important subsidy program.  The subsidies are tax credits that help reduce the cost of health insurance bought on a state-run exchange. 

The credits are needed because ObamaCare’s litany of mandates – such as requiring insurers to accept customers with pre-existing conditions – dramatically increase the cost of health insurance. 

For example, the IRS estimates that the cheapest health insurance plan to cover a family of five will cost $20,000 a year.  And even this only covers 60 percent of medical costs.

But as of now, 26 states are not planning to construct their own health insurance exchange, effectively defaulting to the federal Department of Health and Human Services to pick up the burden, according to the Kaiser Family Foundation.

That’s no problem for HHS since ObamaCare allows the agency to step in and administer an exchange in the absence of state action.  Never mind, of course, that an HHS-run exchange puts the cost back on the federal budget, undermining proponents’ claims that the law would not add to the federal deficit. 

But though the difference between a state-run exchange and a federally-run exchange doesn’t impact HHS, it is potentially an insurmountable hurdle for the IRS.

Under ObamaCare’s terms, IRS health insurance subsidies can only be distributed to people purchasing coverage on a state-run exchange.  The law says nothing about tax credits being available on a federally-run exchange. 

At the time the law was passed, the discrepancy wasn’t noticed because it was assumed that states would go along with the exchanges.  Moreover, the law’s size (more than 2,000 pages) and the lack of public scrutiny (drafted in secret and rammed through Congress) means that details like this were missed.  Thus, one of the key questions reviewing courts must ask themselves is how much leeway can it give to such a corrupt process and still uphold the rule of law?

As the State of Oklahoma is pointing out in a lawsuit (Pruitt v. Sebelius), the failure of ObamaCare to specify whether citizens buying through a federal exchange have access to the subsidies has at least two important consequences. 

First, it means that federal tax credits are not available to such citizens, putting health insurance coverage out-of-reach for individuals and families in a federal exchange. 

Second, it voids any penalties that apply under ObamaCare’s mandate to buy health insurance because, by the terms of the law, penalties can only be assessed on individuals or companies who have access to the subsidies and refuse to purchase health insurance.

If Oklahoma’s case is successful, ObamaCare’s insurance mandates and penalties would be effectively nullified in the Sooner State.  Other states would likely follow suit. 

Standing in the way is an IRS decision that ignores ObamaCare’s text and substitutes an interpretation that encompasses federal exchanges. 

Currently, Oklahoma and HHS are waiting for a federal district judge to rule on whether the state can bring its claim now, or if it must wait until the tax penalties come due.  But if the United States Supreme Court’s ruling from last year’s ObamaCare decision is any guide, the case will proceed on the merits with appeals likely all the way to Washington. 

If Oklahoma’s case does wind up on the Supreme Court’s docket, it would present the justices with another opportunity to either take Congress at its word, or save the legislature from itself with one more bit of interpretive wizardry.

In the summer of 2012, Chief Justice John Roberts infamously joined the Court’s liberal caucus to rewrite ObamaCare’s individual mandate, ruling essentially that Congress misspoke when it said the individual mandate was a proper regulation under the Interstate Commerce Clause.  Instead, what Congress meant to say was that the mandate was proper under the Taxing Clause, even though every supporter from the President on down swore that the requirement was not a tax.

A pernicious aspect of lying is that it inevitably requires practitioners to keep lying in order to avoid the truth.  ObamaCare is the law of the land because of a fallacious interpretation of clear text.  If the Court gets another chance to uphold the plain meaning of the statute, then for the sake of its own integrity it should face the facts, tell the truth and strike a blow against a corrupt law.    

Question of the Week   
A Louisiana second-grader wrote to First Lady Michelle Obama with regard to which one of the following school lunches that had changed under new federal nutrition requirements?
More Questions
Quote of the Day   
 
"A federal judge in North Dakota acted late Thursday to block the Obama administration's controversial water pollution rule, hours before it was due to take effect. Judge Ralph Erickson of the District Court for the District of North Dakota found that the 13 states suing to block the rule met the conditions necessary for a preliminary injunction, including that they would likely be harmed if courts…[more]
 
 
—Timothy Cama, The Hill
— Timothy Cama, The Hill
 
Liberty Poll   

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