Freedom Line Blog

There are many ways to skin a cat, the saying goes, and there may be more than one way to frame the Supreme Court striking down the IRS’ lawless extension of ObamaCare subsidies to an estimated 5 to 6 million Americans.

If the Court invalidates the subsidies for people living in states without a state-run ObamaCare exchange – as a plain reading of the law requires – then the consequences will have a ripple effect.

“For instance,” columnist Philip Klein explains, “ObamaCare’s fines against employers that do not offer health insurance coverage are triggered when a worker claims government subsidies to purchase insurance on an exchange – but in states where workers can no longer legally receive those subsidies, then there are no fines. The employer mandate, thus, is effectively dead in those states.”

There’s more.

“Additionally,” says Klein, “the individual mandate exempts those who can’t find health insurance options for less than 8 percent of their income – thus, if the subsidies are eliminated, more people will be able to claim this exemption.”

In other words, if a lack of ObamaCare subsidies make individual health insurance unaffordable, then the individual and employer mandates are null and void.

An ObamaCare without mandates weakens the law substantially, and makes it far more likely for Republicans to change. If the Supreme Court delivers a decision that brings it about, the GOP should be in a good position to enact a more workable alternative.

Last week the Associated Press revealed that the Obama administration is allowing e-commerce companies to collect private information from people using Healthcare.gov – the government website connecting citizens in 34 states to ObamaCare-compliant insurance plans.

The data points retrieved include ZIP code, age, income, pregnancy status and tobacco use.

Now, the website has reduced the amount of information it is sending, but privacy advocates say more needs to be done.

A tech expert with the Electronic Frontier Foundation says the Obama administration’s website should not allow third-party tracking services to capture the information received from visitors who enable the “do not track” feature on their browsers.

Better yet, the government should get out of the business of sharing sensitive information it mandates citizens to divulge.

Republicans on both sides of Capitol Hill are busy strategizing for ways to minimize the political fallout if the Supreme Court invalidates health insurance subsidies for millions of people currently receiving them under ObamaCare.

The case, King v. Burwell, challenges the IRS’ decision to make insurance premium subsidies available to citizens of 34 states that do not have a state-run ObamaCare exchange. The policy is in direct conflict with ObamaCare’s text, providing the justices with a clear opportunity to hold the Obama administration to the letter of the law.

The Hill is reporting that Republican members of the House and Senate are discussing ways to be ready when and if an estimated 5 to 6 million Americans suddenly can’t afford to purchase mandated health insurance.

So far, no details have emerged regarding specifics. There is a lot to consider since any change in the law will require President Barack Obama’s signature. A complicating factor may be this president’s willingness to let the media portray Republicans and the Court as heartless conservatives, even though all that’s being asked for is the Obama administration to implement its own law as written.

Nothing new here.

On the flip side, it’s encouraging to hear that Republicans in Congress are trying to get in front of a potentially damaging issue by coalescing around an alternative they can sell to the public.

Hopefully this is the start of a welcome trend.

Think rationing health care spending has an effect of which patients doctors see?

A new study released by the New England Journal of Medicine found that Medicaid beneficiaries enjoyed a 7.7 percent bump in the number of appointments doctors scheduled with them when government reimbursement rates increased.

Unfortunately for the poor who use Medicaid, once ObamaCare’s temporary subsidy phased out, states didn’t have the extra money to continue the higher reimbursements to doctors.

And so, it’s likely that doctors will respond to the new (lower) price signal and cut back on the number of Medicaid patients they schedule.

From a policy perspective this study confirms that doctors respond to economic incentives, and that if we as a society are going to help the poorest of the poor get adequate health care Congress and the president need to start prioritizing federal spending so that there’s more money available to help those who need it.

If the folks in Washington, D.C. are looking for a place to start trimming, former U.S. Senator Tom Coburn’s (R-OK) “Wastebook 2014” is a good place to start.

As Republicans turn to the Congressional Review Act (CRA) to rein in the Obama administration’s executive overreach, they should scrutinize a recent trend to shirk the CRA’s reporting requirements.

In my column this week I explain how the CRA works – a federal agency proposes a rule and Congress gets about 60 days to kill it (so long as the president agrees). Even if the president vetoes Congress’ disapproval, the process helps define each party’s stance on the proper role of regulation.

Importantly, the CRA imposes a reporting requirement on federal agencies to inform Congress about final rule proposals. It turns out, however, that the CRA doesn’t create an oversight process to ensure compliance.

Enter the Government Accountability Office (GAO), Congress’ watchdog over the administrative state.

“Shortly after the CRA was enacted, GAO voluntarily developed a database of submitted rules, began checking the Federal Register to ensure that all covered rules were being submitted, and periodically notified the Office of Management and Budget (OMB) about missing rules,” says a 2014 report from the Administrative Conference of the United States.

“However, in November 2011, GAO decided to reduce its checks of the Federal Register, and to stop notifying OMB about missing rules.”

As a consequence, GAO lost track of whether federal agencies were complying with the CRA. Between 2012 and 2014, “[m]ost of the 43 missing major and significant rules also did not appear to have been received by both houses of Congress – thereby preventing a Member of Congress from introducing a resolution of disapproval under the CRA.”

Since Congress can’t disapprove what it doesn’t know about, the Republicans that control the legislative branch should instruct GAO to ratchet up its oversight to ensure the Obama administration is CRA-compliant.

“Have you been researching a chronic illness like coronary artery blockage? Do you shop online for smoking-cessation aids? Are you investigating genetic markers for a certain type of breast cancer? Are you seeking help for financial problems, or for an addiction?”

Those are just some of the information items potentially being collected on Healthcare.gov – the federal government’s ObamaCare website used by millions of Americans to shop for health insurance.

A report by the Associated Press confirmed that “dozens” of third party vendors like Google, Twitter and Facebook are gleaning personal data points from Healthcare.gov users. These can be sold to internet advertisers to market products directly to consumers who’ve searched for similar items.

The hidden presence of these websites drew concern from two cyber security experts interviewed by the AP, in part because tracking firms can piece together a user’s identity through IP addresses and patterns of behavior.

Once upon a time there was concern that hackers would find a way to access a person’s health and financial records through a weakness in Healthcare.gov. As it turns out, all they need to do is pose as an e-commerce vendor.

Writing at The Federalist, my friend Andrew Carico gives some good advice to President Barack Obama ahead of the latter’s seventh State of the Union address tonight.

After recounting the descent of the event into a Woodrow Wilson-inspired laundry list of to-do items, Carico distinguishes a statesman from a leader, defining the former as “someone who understands constitutional principles, leads by way of those principles, and seeks to make those principles work in political life. He seeks to achieve stature in public office through toning down divisions and appealing to reason, not simply attempting to win the fight of the day by practicing the little arts of popularity.”

Carico’s description of the statesman sounds arguably like what some people thought they were getting when they voted for the orator who said, “there’s not a liberal America or a conservative America; there’s the United States of America.”

It’s no coincidence that statesman-sounding Obama went from obscurity to the White House, while liberal demagogue Obama can’t crack a 50 percent approval rating.

For more of Carico’s excellent analysis, click here.

Marilyn Tavenner, the chief administrator of the Centers for Medicare and Medicaid Services (CMS), announced in an email last Friday to staff that she is stepping down at the end of February.

The move comes as something of a surprise, but the timing is similar to that of Tavenner’s former boss, Health and Human Services Secretary Kathleen Sebelius. Last year, Sebelius said she was leaving her post after ObamaCare’s initial enrollment period ended. Tavenner’s resignation is effective when the controversial health law’s second enrollment period concludes.

Tavenner’s time in office was marred by a glitch-ridden rollout of Healthcare.gov, the federal ObamaCare website that earned the ire of millions of Americans. She also came under fire for overstating ObamaCare’s enrollment figures by inaccurately including 400,000 dental plans that have never been counted toward health insurance numbers.

With Republicans in control of the Senate that will confirm Tavenner’s replacement, it will be interesting to see who President Barack Obama taps to fill her shoes.

With oil prices at record lows some Members of Congress have floated the idea of raising the federal gas tax to make up for lost revenue.

Today, Paul Ryan put the kibosh on the proposal.

“We won’t pass the gas tax,” Ryan, a Wisconsin Republican, said to members of the media outside a GOP policy retreat in Hershey, PA.

Ryan’s pronouncement likely quashes the idea that Congress will pass legislation during his tenure as chairman of the tax-writing Ways & Means Committee.

This won’t make the social engineering crowd happy.

According to a piece at Newsweek in support of imposing a higher gas tax, “Whenever you impose a new and unanticipated tax, some part of the existing capital stock becomes less valuable than it was before.” “Adding, say, 50 cents to a gallon of gasoline makes preexisting gas guzzlers, homes in the suburbs and oil-based home heating systems worth less than before.”

“Conversely, when oil prices fall, fuel-efficient cars, homes in city centers and public transit investments all drop in value. This can lead to economic waste: under-used automobiles, unrented homes and empty subways,” complains the author.

Note that the compacted urban lifestyle preferred by liberal social planners is the vision that suffers from low gas prices, while the middle class lifestyle experienced by millions of Americans benefits.

Raising taxes to force people to become public transit-riding renters instead of car-driving homeowners isn’t very popular when put in these terms.

Kudos to Chairman Ryan for putting this idea to rest.

Fresh from beating Democratic incumbent Mary Landrieu in a run-off last December, Republican Bill Cassidy is off to a fast start as a freshman in the U.S. Senate.

Making good on his campaign promise to get rid of ObamaCare, Cassidy, a physician, has introduced two bills within just weeks of taking office.

The “No ObamaCare Mandate Act” would repeal the medical device tax, the employer mandate and the individual mandate, according to a report in The Hill.

In addition, “The Employee Health Care Protection Act” would reduce benefit requirements in health insurance plans regulated by ObamaCare, giving providers more flexibility and consumers more options.

And apparently, Cassidy knows how to give a good speech. In defending the Keystone XL pipeline from ideologically motivated attacks by environmentalists, Cassidy said, “We are not to be guided by our prejudice. We’re not to be guided by what we want to be the case. We are to be guided by the facts.”

Usually, it’s liberals who claim the mantle of science and scold conservatives for being fearful of the truth. It’s good to see a conservative U.S. senator return the favor.

How important is the upcoming 2016 presidential election?

According to research by political scientist Jordan Ragusa, the most favorable time to repeal landmark legislation like ObamaCare occurs about ten years after its passage.

Since ObamaCare was passed in 2010, that means 2020 is the year repeal activity could be at its height.

Ragusa’s ten-year window is an average calculated over a fifty-year study of repeal efforts of major laws. In the context of ObamaCare, Ragusa’s timeline makes perfect sense. Republicans don’t have the supermajority in either chamber of Congress to override a certain veto from President Barack Obama. But if a Republican wins the presidency in 2016, all the GOP would need is a simple congressional majority to repeal any or all of ObamaCare.

Yes, it’s important for Republicans in Congress to get whatever wins they can muster now to weaken ObamaCare before it does more damage. But changes in partisan control take time. When ObamaCare was passed Democrats were in complete control of the political branches. The earliest Republicans could be in such a position is January of 2017.

It will also take time for the GOP to coalesce around a comprehensive alternative to ObamaCare, which, according to Ragusa’s data, shouldn’t be too much of a concern as long as a repeal-and-replace bill is signed into law before the Republican president’s first term expires.

There are a lot of considerations to keep in mind when it comes to securing a free market alternative to ObamaCare. Lack of time to do it right isn’t one of them.

If you want to know how Congress can stop President Barack Obama’s unilateral amnesty plan, take a look at Rep. Martha Roby’s (R-AL) new proposal – H.R. 31, the “Prevention of Executive Amnesty Act of 2015.”

Filed as a standalone bill, the measure could easily be rolled into the upcoming appropriations package for the Department of Homeland Security, the federal agency that is tasked with implementing Obama’s decision to halt deportations for up to 5 million illegal immigrants and grant many of them work permits.

As Byron York explains, “Roby’s bill is essentially a ‘none of the funds’ clause, that is, it forbids the executive branch from spending money for a particular purpose.” In the so-called ‘crominbus’ bill passed in December to fund every other federal agency except DHS, Congress used the ‘none of the funds’ clause more than 450 times. Applying it to the directives that implement Obama’s amnesty is a simple, straightforward way for Congress to use its power of the purse to block the move.

Of course, Obama can veto any bill with Roby’s language. But since the president doesn’t have a line-item veto, refusing to sign the law would defund DHS.

For once, let this president get the blame for shutting down the government.

After misfiring in Congress, the gun control lobby is taking aim at states that allow voter-initiated ballot measures to enact tougher restrictions.

In the process, those in charge are also changing their name to the “gun safety” movement.

The policy preferences, however, remain the same.

“After a victory in November on a Washington State ballot measure that will require broader background checks on gun buyers, groups that promote gun regulations have turned away from Washington and the political races that have been largely futile,” reports the New York Times. “Instead, they are turning their attention – and their growing wallets – to other states that allow ballot measures.”

States in the crosshairs include Nevada, Arizona, Maine and Oregon. Others are sure to follow.

Conservatives should be cautiously optimistic about this move. While the U.S. Supreme Court has affirmed that the Second Amendment’s guarantee of a citizen’s right to “keep and bear arms” applies to the states (McDonald v. Chicago), the extent of that right is up to states and localities to decide. This is federalism. Local communities are in the best position to determine which regulations best serve the interests of residents.

But federalism as the Founders understood it assumes deliberation in the republican sense – i.e. policy choices are made by the people’s elected representatives, not by direct democracy via a statewide ballot initiative. The point of sifting public opinion through elected representation is to strip away passions and get down to first principles. Busy citizens don’t have the time or the staff carefully to review proposals that set the standards for civic life. Better to resource an elected representative with time and personnel, and then hold him accountable for the votes he casts.

Herein lies the reason to be cautious. Being thoughtful about big policy changes isn’t usually achieved in the context of a media-heavy campaign blitz dominated by 30-second ads. But this limitation is no reason for constitutional conservatives to sit on the sidelines. Removing social policy issues like gun control to the state level reduces the expense of advocacy while at the same time making the appeals more personal. If this trend continues, conservatives will need to build on their successes in other issue domains to defend traditional American values in the arenas that are available.

Though it would be better to locate policy debates within the institutions that are best equipped to handle them, if liberals want to make a direct appeal to the public, conservatives will be ready and waiting to respond.

Anyone still looking for a fundamental change to the federal tax code need look no further than ObamaCare.

H&R Block, one of the nation’s largest tax preparation companies, is promoting its free “ACA Tax Impact Analysis” on January 8, 2015, in order help taxpayers understand the true cost of ObamaCare.

Reporting by The Hill quotes an H&R Block executive as saying that the controversial health law is “the biggest tax code change” in two decades. Its passage “has made health care a tax issue and is going to make filing taxes more complicated this year.”

Perhaps the biggest surprise coming to millions of taxpayers is the penalty amount to be assessed for not complying with the law’s individual mandate. Most people know that the IRS can levy a $95 fine for being uninsured this year (which rises every subsequent year). But many do not realize that’s only one option. ObamaCare authorizes fines up to 1% of annual income (which also rises every year), if that amount is greater than $95.

Simply put, a lot of people who passed on ObamaCare’s costly version of “affordable” insurance thinking they would only have to write a $95 check may be missing a much bigger chunk of their IRS refund this year.

Now in the majority, GOP Senators are moving quickly to approve the Keystone XL pipeline, a transcontinental project that would link Canadian oil to refineries in American Gulf states.

“The president is going to see the Keystone XL pipeline on his desk and it’s going to be a bellwether decision by the president whether to go with jobs and the economy,” Senator John Barrasso (R-WY), said on Sunday.

President Barack Obama has played games with the approval process over the past few years. Initially, his State Department supported the project and was ready to go forward until environmental activists successfully lobbied for delaying tactics, such as additional feasibility studies.

Without a Democratic Senate running interference, Obama will now have to govern. Though it prefers to partner with the United States, Canada has said it will export its oil to China if the Obama administration remains beholden to the environmental lobby.

The truth of the matter is that the oil is being pumped and its $3.4 billion economic contribution will have to go somewhere. Ultimately, Obama’s decision boils down to whether he wants Canadian oil to boost the American economy or China’s.

Hat tip to the Daily Caller for unearthing yet another damning admission from ObamaCare architect Jonathan Gruber.

At roughly the same time in 2009 when President Barack Obama was telling the American people that passing his version of health care reform would lower costs, Gruber was telling an audience in Syracuse, New York it was all a lie.

“Why are we closer than we’ve ever been before? Because there are no cost controls in these proposals. Because this bill’s about coverage. Which is good! Why should we hold 48 million uninsured people hostage to the fact that we don’t yet know how to control costs in a politically acceptable way? Let’s get the people covered and then let’s do cost control,” Gruber told his listeners.

Thanks for the honesty, Professor Gruber, but it only counts if you say it before the damage is done.

It’s not every day that the leading liberal law professor in America calls out the actions of the Obama Environmental Protection Agency as “lawless” and “unconstitutional.”

“After studying the only legal basis offered for the EPA’s proposed rule, I concluded that the agency is asserting executive power far beyond its lawful authority,” writes Harvard law professor Laurence Tribe.

The EPA is launching a “Clean Power Plan” that will require state governments to enact restrictions on local electrical power plants in an effort to fight global climate change. As Tribe sees it, the EPA “would effectively dictate the energy mix used in each state and leave the state with essentially no choice in implementing its plan.” Such an arrangement would violate numerous Supreme Court decisions that prohibit “federal commandeering of state governments” because it “defeats political accountability and violates principles of federalism that are basic to our constitutional order.”

Of course, this isn’t the first time President Obama has exceeded his constitutional authority to implement a controversial policy. It fits a pattern of executive action unrestrained by seemingly any qualms over violating clear statutory limitations.

And even though Tribe doesn’t make the obvious analogy to ObamaCare’s politically corrupt origin, he doesn’t pass up the opportunity to highlight what’s really motivating the EPA’s new regulatory scheme: “The brute fact is that the Obama administration failed to get climate change legislation through Congress. Yet the EPA is acting as though it has the legislative authority anyway to re-engineer the nation’s electric generating system and power grid. It does not.”

Change the author’s byline and this article easily could be written by any constitutional conservative. Realizing that it comes instead from one of the leading proponents of the “living constitution” school, and it’s obvious that Obama & Co. are far beyond the boundaries of what even the most celebrated liberal academic scholar considers lawful executive action.

Vermont will not push forward with its plan to launch a state-based single payer health care system in 2017, reports the Daily Caller.

Democratic Governor Peter Shumlin made the announcement on Wednesday, citing several factors.

Among the most important were changes in financing assumptions. Vermont had been counting on infusions of federal funding to buoy the program, but confirmed that it overshot its estimates by a whopping $311 million. Without the expected seed money of federal tax dollars there’s not enough start-up capital needed to get the project going.

The other blow to Vermont’s single payer scheme – to be called Green Mountain Care – is its lack of financial sustainability. In order to make the enterprise successful, Vermont would need to levy tax hikes like an 11.5 percent payroll tax and an income tax up to 9.5 percent. Those changes would likely kill business development in the state, eroding the tax base necessary to pay for Green Mountain Care.

Though the time, money and effort poured into this failed experiment have been costly, it will hopefully serve as a reality check for government officials to abandon the impossible and instead focus on implementing tangible policies that can improve lives now.

A federal district judge has said that President Barack Obama’s amnesty program for illegal immigrants violates the U.S. Constitution.

The only question: Does it matter?

Judge Arthur Schwab, a George W. Bush appointee, issued a ruling yesterday saying that, “President Obama’s executive action goes beyond prosecutorial discretion because: (a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination; and (b) it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights.”

Unfortunately, however, Judge Schwab’s declaration may be little more than a non-binding advisory opinion. According to conservative law professor Jonathan Adler – one of the originators of the ObamaCare subsidies challenge now before the U.S. Supreme Court – Schwab’s ruling came after he requested supplemental briefing in a case trying to decide how to sentence an illegal immigrant for a non-immigration-related crime. Apparently, Schwab wanted to know if the defendant qualified for protection from deportation under Obama’s plan. Schwab then used the occasion to find the amnesty program unconstitutional.

While legal experts like Adler try to figure out how much to make of this opinion, Schwab’s ruling points to a larger issue. Namely, that major policy changes have major policy implications. For example, legal immigrants are finding out that creating exceptions for illegals increases the costs on the law-abiding.

Time will tell if Obama’s amnesty program has a negative impact on the federal court system as well.

Nearly half of the States in America are now suing the Obama administration to stop the president’s unilateral and unconstitutional directive to grant temporary amnesty and work permits to as many as five million illegal immigrants.

Current Texas Attorney General and incoming Governor Greg Abbott, a Republican, announced four new states joining the coalition he assembled that is seeking to have the federal courts halt a Department of Homeland Security directive that violates both the U.S. Constitution and federal law.

The latest roster includes: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, North Carolina, South Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Utah, West Virginia and Wisconsin.

If this trend keeps up, it won’t take much longer for a majority of states to oppose what to all reasonable observers is an unprecedented power grab by this president.

Hopefully, the federal courts are listening.