Freedom Line Blog

President Barack Obama seemingly loves to invite controversy and criticism for using executive discretion to rewrite or ignore federal law. He and his allies apparently believe that when critics say his actions violate the Constitution, most people assume the dispute is too complex to understand or simply motivated by ideology.

So perhaps what’s needed to focus the public’s attention is a straightforward line of argument that shows Obama deliberately disregarding a bright line rule.

If so, Judge Andrew Hanen may have found it.

On Tuesday, Hanen granted a temporary injunction to Texas and more than twenty other states suing to stop Obama’s unilateral amnesty from going into effect. The reason is simple. By announcing the plan without any advance notice, Obama violated the Administrative Procedure Act.

The APA is a very important but little known federal law that tries to rein in the administrative state by requiring agencies to give notice and accept comments before implementing changes in policy. Because Obama did not comply with this very simple rule, his amnesty plan is, in effect, illegal.

The Obama administration is already working on an appeal to the Fifth Circuit, and time will tell whether this very straightforward application of the law to the facts is undone somehow with lawyerly sleight-of-hand.

In the meantime, critics of the Obama administration’s disregard for the rule of law can enjoy the fact that, for the moment at least, the most activist president in modern times is being stymied by the very Act that makes governmental activism possible.

John Fund documents the Supreme Court’s growing impatience with the Obama administration’s refusal to adhere to the letter of the law in a piece out today with National Review.

Citing Jonathan Adler, a conservative legal expert, Fund highlights several recent Supreme Court decisions that slap down the executive branch’s significant regulatory overreach. Justices on both sides of the ideological spectrum – from the liberal Kagan to the conservative Scalia – refuse to grant President Barack Obama and his bureaucratic lieutenants the authority to change statutory requirements on a whim to suit policy goals the underlying law does not allow.

This backdrop is important as the D.C. Circuit Court of Appeals prepares to hand down its decision in Halbig v. Burwell, a case that challenges an IRS interpretation of ObamaCare that, if overturned, could prohibit the subsidies most Americans need to pay for the law’s expensive insurance plans.

Weighing in the challengers’ favor are the 13 unanimous Supreme Court decisions that have invalidated moves by Obama executive agencies since he took office. In its reasoning the Court has consistently said that the president must adhere to the constitutional framework for making laws, which limits the executive to faithfully executing (i.e. carrying out) what Congress has actually passed as legislation.

In the ObamaCare context, that means striking down the IRS rule that explicitly ignores the prohibition on giving federal subsidies to users of the federal health insurance portal.

Making them available only on state exchanges was an enticement to get states to foot the bill for implementation. It has since backfired with 34 states declining the deal.

Does that complicate the Obama administration’s ability to call federal ObamaCare plans affordable? You betcha. But it also preserves the constitutional check on a president prone to act beyond his designated powers.

Though it might be unpleasant for the White House and its allies, the world will not end if Barack Obama is forced to negotiate with Congress. Another judicial reminder to respect the structure of the Constitution would be a public service by the D.C. Circuit – and the Supreme Court.

Daniel Himebaugh, a friend and lawyer at Pacific Legal Foundation (PLF), sends along an update about his firm’s ongoing challenge to Obamacare as violating the Origination Clause. Under the clause, all bills raising revenue via taxes must originate in the House of Representatives.

As Dan explains in a blog post, “We contend that the legislation that eventually became Obamacare failed to comply with the Origination Clause because it contains a tax on individuals that originated in the Senate. That’s where Majority Leader Harry Reid took a bill the House had already passed – HR 3590, which would have provided incentives for veterans to buy their first homes – and replaced all its contents with what became the ‘Patient Protection and Affordable Care Act.’”

Importantly, none of the Supreme Court’s existing exceptions to the Origination Clause apply to the circumstances of Obamacare. Thus, striking down the entire law could be as straightforward as finding that the Senate failed to follow the constitutional process for passing a revenue bill.

PLF’s case, Sissel v. United States Department of Health and Human Services, is beginning its appellate journey in the D.C. Circuit, with an opinion anticipated early next year. CFIF readers and all lovers of liberty would do well to acquaint themselves with the details of the lawsuit, which the firm makes easy with links to a case page, an in-depth backgrounder and its opening brief.

Like the other legal challenges to Obamacare working their way through the court system, PLF’s case deserves not only a hearing, but a favorable result.

Though Obamacare’s individual mandate barely survived the Supreme Court last year, there’s no guarantee that some of the law’s other elements will be so lucky.

Last week, Tim explained that litigation challenging the health law’s federal subsidy structure is proceeding toward the Court. If the Court’s four consistent conservatives and swinger Anthony Kennedy stay true to the text, citizens in 34 states won’t be eligible for subsidies that make Obamacare-approved insurance plans (somewhat) more affordable.

Another series of cases challenge the controversial ‘HHS mandate’ that requires all non-houses of worship to provide employees with access to contraceptives and abortion-related services; despite the objecting employer’s religious beliefs. Appellate level decisions are split between the government and private business, meaning the Court is very likely to decide the issue as a way to provide continuity throughout the nation.

If recent trends hold, the Supreme Court will hear oral arguments in both lines of litigation sometime next spring, releasing a high-profile opinion in mid-summer.

As long as Obamacare is the law of the land, there will be no end to the headaches it creates.

If you think Obamacare-approved insurance is expensive now, imagine how high it could go if the Supreme Court rules federal subsidies illegal.

Currently, there are four lawsuits making their way through the federal judiciary. I’ve profiled one from Oklahoma previously, and its arguments are essentially the same as the others.

In a nutshell, the text of Obamacare makes federal subsidies available to people buying health insurance on state-run exchanges created under Section 1311 of the law. The law says nothing about subsidies being available for insurance bought through federally-run exchanges created under Section 1321.

The Internal Revenue Service tried to paper-over the problem by issuing a regulation that made subsidies available on both sets of exchanges, but that’s being vigorously challenged as an illegal affront to the plain meaning of the Obamacare statute.

As Sean Trende notes, this challenge to Obamacare, if successful, wouldn’t kill the law outright. That might make voting against the IRS’s power grab more palatable for Chief Justice John Roberts, who cast the crucial fifth vote to uphold the individual mandate last year.

Of course, if the subsidies aren’t available to people in the 34 states where HHS is operating an exchange, then the system will implode. Even with subsidies many people are struggling to pay for the higher costs. Take them away and a huge political backlash will be unleashed.

If any of these cases gets to the Supremes, let’s hope they stick to the law and leave the politics for Election Day.

Democratic strongholds like California, Vermont and New York have been quick to use ObamaCare’s state-based insurance exchanges as an excuse to register voters.

State officials are claiming that 1993 National Voter Registration Act (aka the “Motor Voter Act”) requires combining election prospects with health insurance, but the reality is much murkier.

To start, ObamaCare is silent on voter registration. “The health care law spans 974 pages and regulates nearly one-fifth of our economy,” Rep. Charles Boustany (R-LA) wrote in a letter to the Department of Health and Human Services, “yet nowhere in the law is voter registration mentioned.”

Then there’s the Motor Voter Act itself.

As written, the law “requires states to offer voter registration at government offices, most commonly departments of motor vehicles,” explains the Detroit Free Press. “With the exchanges, which are in some ways a new kind of government office, some are questioning whether the law applies to them.”

But unlike a state’s motor vehicles department, not all ObamaCare exchanges are standard government agencies. The paper continues, “In some states, the exchange will be a nonprofit; in others it will be part of the state’s health or human services agency. And in many Republican-controlled states, the federal government will operate the exchanges.”

The lack of uniformity is already leading to differing interpretations about whether the Motor Voter Act applies, which in turn is spawning lawsuits.

With this much uncertainty leading to costly court battles, states and their taxpayers would be much better served leaving the question whether Motor Voter applies to ObamaCare for academics to debate.

The alternative is an expensive and unnecessary distraction.

Politico: “A House committee’s lawsuit against Attorney General Eric Holder over his refusal to turn over some documents related to the fallout from Operation Fast and Furious will move forward at a faster pace than the parties requested, a federal judge ruled Wednesday.

“The Justice Department moved on Oct. 15 to throw out the lawsuit brought by the House Oversight and Government Reform Committee and agreed with the House panel that it’s lawyers could have two months to respond to that motion. However, U.S. District Court Judge Amy Berman Jackson rejected that proposal on Wednesday, saying that the House committee should file its response by Nov. 16.”

The quicker review means that the next step in the Fast and Furious scandal – whether President Obama can be compelled to hand over documents relating to the Mexican gun-running operation – won’t get buried in the last days of the lame duck session.

Good for Judge Berman.  America needs a timely resolution to this issue.

My column this week explains the logic behind an important new constitutional challenge to ObamaCare by the Pacific Legal Foundation, a non-profit property rights law firm.

In its lawsuit, Sissel v. Department of Health and Human Services, PLF argues that the Supreme Court did ObamaCare no favors when it saved the law from a Commerce Clause challenge by reinterpreting it as a constitutional exercise of Congress’ taxing power.

Instead, PLF argues, the Court merely exposed ObamaCare’s newly found taxing authority as an express violation of the Constitution’s Origination Clause, which requires all new tax bills to originate in the House of Representatives, not in the Senate as ObamaCare did.

Though simple and faithful to the Constitution’s text, PLF’s argument is nonetheless novel because some of the Supreme Court’s precedents indicate the Court will not seriously enforce the Origination Clause’s procedure.

But as liberal legal scholar Jack Balkin says in a blog for The Atlantic, Chief Justice John Roberts and his conservative colleagues may be open to rethinking those precedents:

In a previous essay for The Atlantic, I noted that even if a legal argument is currently “off the wall,” it may nevertheless become plausible if enough prominent people get behind it and vouch for it. Support by major political parties is probably the most important factor in quickly moving arguments from “off the wall” to “on the wall.” The challengers’ arguments in NFIB v. Sebelius got as far as they did because the unconstitutionality of Obamacare became virtually the official position of the Republican Party, and Republican politicians and affiliated media pushed the challengers’ claims over and over again. Repeated arguments by conservative politicians, media, and intelligentsia, in turn, probably affected the views of Republican-appointed judges and justices about how seriously to take the arguments.

Members of the media will no doubt ask legal scholars (such as yours truly) whether the PLF’s new constitutional challenge to Obamacare is likely to succeed on the merits. I’ve just given you my answer: not under existing law.

But if reporters have been paying attention to the events of the last two years, they should know that, at least where health care reform is concerned, the considered views of legal scholars are not the most important ones. The real question to ask is whether Republican politicians, right-wing talk radio, and Fox News will get behind the new challenge with the same degree of enthusiasm they had for the first legal assault on Obamacare. If they do, then the mainstream media will no doubt cover the controversy as it did before. If a conservative district court judge takes the arguments seriously, the game is on once more. And then, perhaps, Chief Justice Roberts, given a second chance, will change his mind — again.

With today’s filing of lawsuits (against ObamaCare’s abortifacient mandate) in 12 federal districts by 40 different Catholic organizations, the issue is now squarely at hand: Are Americans allowed free consciences and free exercise of religion, or not? The Obama administration, its tyrannical impulses(and fundamental lawlessness alien to the American tradition) now available for all to see, says no. These 40 Catholic entitities — supported even before their suits by statements of support from many other denominations — say yes, we are free people with free consciences and the right to freely exercise our religion.

At NRO today, the great George Weigel explains it all better than I’ve seen anywhere else:

As the battle continues, it will be important, amidst the litigators’ argument and the administration’s attempts to reply, to remember that what is at stake here is nothing less than the future of civil society in the United States.

A victory in the lawsuits filed against the administration’s mandate will be more than a victory for religious freedom, important as that will be. It will be a victory in defense of the social architecture of American democracy. Government is not the only custodian of the common good. The institutions of civil society bear a significant and irreducible responsibility for the common good, a responsibility they must be able to fulfill freely, without unwarranted interference from an overweening state that is ignorant of the limits of its legitimate reach.

Hear, hear.

In an interview with CFIF, Todd Gaziano, Director of the Center for Legal and Judicial Studies at the Heritage Foundation, discusses the outlook for the 26-state lawsuit against ObamaCare, which is soon to be decided at the U.S. Court of Appeals for the 11th Circuit.

Listen to the interview here.

For several years, California-based Chevron Corporation has been fighting against what has long appeared to be a rather bogus lawsuit on behalf of Ecuadorian plaintiffs (and the Ecuadorian government, driven by American trial lawyers, in the course of which the specter of potential fraud on the part of those attorneys has been brought up repeatedly by judges and others).

Now come two new-ish developments in the case, which has become an important test of whether American courts and/or the Obama administration will stand up for an American company under apparently groundless assault abroad.  I’ll blog here about the second of these developments tomorrow, but for now, the first one merits watching. About two weeks ago, The NY Times’ “Greenwire” featured this story about a problematic tie-in between the alleged skulduggery against Chevron and a company that is a major U.S. federal contractor on other eco-projects, including last year’s BP oil spill:

Boulder, Colo.-based Stratus Consulting, a long-term contractor with the National Oceanic and Atmospheric Administration and other federal agencies, is gathering and analyzing data concerning the Gulf of Mexico spill.

Stratus was named in February as a defendant in the federal racketeering suit filed by Chevron against Ecuadorean plaintiffs and their legal team who are seeking damages for environmental contamination relating to Texaco Petroleum Corp.’s operations there…. Chevron’s allegations concerning Stratus’ involvement in the conspiracy to extort the company center on the actions of an independent expert, Richard Cabrera, who was hired by the Ecuadorean court to conduct a study of the alleged environmental damage.

Chevron noted this:

Stratus’ own insurance company, Navigators Specialty Insurance Company, submitted a filing with a federal court in Colorado to argue that it had no duty to defend Stratus against allegations of fraud.  According to an article in Law360.com, “Navigators Specialty is now seeking to avoid covering Chevron’s suit on the grounds that the consultant knew when the professional liability policy began in October of an alleged act, mistake or omission that could have reasonably led to a lawsuit. A policy provision excluding coverage for intentional acts also bars indemnification and defense, as does an exclusion for undisclosed circumstances, according to the declaratory relief suit.”

Stratus, of course, denies culpability for any wrongdoing, and this blog post is intended to reach no ultimate judgment on that issue. The point here is to note that if Stratus is found culpable for major misdeeds, it darn well ought to affect its ability to garner federal contracts — a major source of revenue for the company, as this list of what (by my quick arithmetic) looks like nearly $40 million of work indicates.

It also is quite interesting how large a proportion of those contracts (by my VERY quick count, well over half) have come after Barack Obama took office. Stratus’ principles seem to be Democratic/Obama donors. Granted, the amounts aren’t very high, and further granted (indeed, I insist) that political donations are not in any way inherently corrupt or corrupting. But they can give evidence of political connections, of course, and when they coincide with federal contracts they should always be examined so the public itself can decide whether anything looks amiss. That said, for the record, Stratus principles have donated the following amounts in recent years: Douglas Beltman, $1,000 to Obama for America. David Chapman, $250 to the Democratic National Committee Services Corporation and $300 to Obama for America. And Robert Rowe, $250 to Obama for America. As Jerry Seinfeld would say, “not that there’s anything wrong with that.”  But it does show what looks like an apparent liberal bent by Stratus, and at the margins it puts a spotlight on the Obama administration’s failure to lift a finger in support of Chevron’s seemingly just cause.

For more on this, read the excellent round-up by Carter Wood at Shop Floor.  And, to give major credit where due, Bob McCarty beat everybody on this story by a mile.

Again, more on this tomorrow as well.

A federal judge in Virginia has ruled that significant parts of ObamaCare are unconstitutional, including the mandate requiring individuals to purchase health care insurance.

As Politico.com is reporting it:

In a highly-anticipated suit brought by Virginia Attorney General Ken Cuccinelli, District Judge Henry E. Hudson ruled that the individual mandate to buy health insurance is unconstitutional as it “exceeds the constitutional boundaries of congressional power.”

Hudson stopped short of blocking the law’s implementation until a higher court acts, but said he expects the administration to honor his ruling.

“The final word will undoubtedly reside with a higher court,” Hudson wrote in his ruling. “In this Court’s view, the award of declaratory judgment is sufficient to stay the hand of the executive branch pending appellate review.”

In light of today’s ruling, the Obama Administration should immediately cease implementation of the unconstitutional individual mandate and all other provisions of ObamCare until the matter is fully resolved by the courts.  If the Administration refuses to act, Congress should act without delay to force the Administration’s hand.

“We have to pass the bill so that you can find out what is in it.”  That was Nancy Pelosi last March, promoting that Pandora’s Box known as ObamaCare.  Well, it turns out that Pelosi and the bill’s proponents may be upset to find out what is not in it.  Namely, they failed to include a severability clause in their haste.

So what is a “severability clause,” and why might it matter?  A severability clause is a simple provision stating that if a court later declares one or more subsections of a bill void, the remainder of the bill remains valid and enforceable.  Without a severability clause, an entire bill can be jeopardized even if a very small part of it is stricken by the judicial branch.  Now, with separate lawsuits challenging ObamaCare quickly proceeding toward judicial reckoning, it is possible that the entire package may crumble if its individual mandate (forcing free citizens to engage in involuntary commerce by purchasing approved health insurance) or some other clause falls.

There is no guarantee in this regard, as the Supreme Court just this year curiously allowed the tangled Sarbanes-Oxley web to survive despite its own absence of a severability clause.  Nevertheless, the complete demise of ObamaCare due to the failure to add a simple severability provision could be one positive byproduct of ObamaCare’s sloppy birth.

A federal judge in Florida today ruled that 20 U.S. states can proceed with a lawsuit against the recently passed federal health care legislation on the grounds that its individual mandate is unconstitutional.  In response, CFIF President Jeffrey Mazzella released the following statement: 

The Center for Individual Freedom commends the court for recognizing and validating arguments presented by the plaintiffs, who have provided substantive legal arguments regarding the unconstitutional nature of the legislation’s mandate on individuals and the troubling power grab by the federal government represented in it.
 
“We will continue to join the plaintiffs and others in advocating the merits of this case, making it clear to the American public that the legislation is an unconstitutional infringement on the freedom of individual Americans.”

In a refreshing victory today for individual freedom, the concept of federalism and Constitutional principles, a federal judge in Florida rejected the Obama Justice Department’s request to dismiss the challenge by 20 states against ObamaCare’s unconstitutional provisions.

Among other things, Judge Roger Vinson ruled that the states can proceed in their argument that ObamaCare’s individual mandate, which forces citizens to engage in involuntary commercial transactions by purchasing insurance, violates the Constitution.  The Obama Administration, which couldn’t seem to decide whether ObamaCare passed Constitutional muster as a “tax” or under some other convenient authority, contended that the challenge should be thrown out in its entirety.  With this preliminary legal victory, the case can now proceed toward trial.

Well, that settles it.  If immigration-friendly Mexico supports invalidating Arizona’s illegal immigration law, then I guess the debate is over.

This can’t come as good news to the Obama Administration.  It’s bad enough that “only” an overwhelming majority of Americans support Arizona’s SB 1070.  Now, the biggest cheerleader for Attorney General Holder’s lawsuit comes from the government whose inability to police the drug cartels or provide a stable economic environment for its citizens helps drive illegal immigrants north.

I wonder how long it will be before the president sends his buddy Felipe Calderon a note saying “No gracias, amigo.”

In an interview with CFIF, Florida Attorney General Bill McCollum discusses the lawsuit brought by at least 20 states challenging the constitutionality of ObamaCare and why the new law’s unprecedented mandates are an affront to individual freedom.

Listen to the interview here.

Bertha Lewis, head of the Association of Community Organizations for Reform Now (ACORN), has been busy in recent months trying to defend her organization in the face of an avalanche of controversy.  Lewis is sticking to her argument that it was merely a few bad apples employed by ACORN who were caught on undercover videotape giving advice on how to lie to the IRS on income from a fictional underage brothel.  Such behavior isn’t typical within the organization, she claims.

Or is it?  Ronald Kessler, Chief Washington Correspondent at Newsmax.com, writes today:

More undercover videos of ACORN workers apparently advising Hannah Giles and James O’Keefe on how to evade federal taxes on income from a fictitious brothel will be released to the media in coming weeks, Giles tells Newsmax. 

In the meantime, the Association of Community Organizations for Reform Now has filed suit in Maryland against Giles and O’Keefe, claiming civil damages…

Attorneys for the Liberty Legal Institute are defending Giles, the daughter of a conservative pastor in Miami, pro bono. 

In related news, Politico is reporting that ACORN “filed a lawsuit against the federal government Thursday morning, seeking to overturn a law stopping the flow of federal funds” to the organization.  ACORN argues that measures passed by the House and the Senate to stop the organization from receiving certain taxpayer dollars are… unconstitutional.