Sen. Feinstein: ‘The Constitution Lives Loudly Within This One’
Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez…
View more of Michael Ramirez’s cartoons on CFIF’s website here.
Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez…
View more of Michael Ramirez’s cartoons on CFIF’s website here.
The funniest response yet to Senator Corey Booker’s (D – New Jersey) self-immolation during this week’s confirmation hearings for Brett Kavanaugh:
Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.
View more of Michael Ramirez’s cartoons on CFIF’s website here.
Following the tragic news of Supreme Court Justice Antonin Scalia’s passing, Senate Majority Leader Mitch McConnell and other Republican lawmakers rightly have been arguing that Scalia’s replacement should be left to the next President.
Predictably, Senator Charles Schumer (D-NY), Harry Reid’s hand-picked replacement to become the Senate Democrat leader following Reid’s retirement in 2016, is crying foul. On ABC’s “This Week,” Schumer bemoaned, “You know, the kind of obstructionism that Mitch McConnell’s talking about, he’s harkening back to his old days.”
But it was Schumer, back in July 2007, who argued in a speech to the American Constitution Society that, except for in extraordinary circumstances, the Senate should block any Supreme Court nominations made by President George W. Bush during his remaining time in office. At the time, Schumer said:
We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.
Schumer went on to add:
We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances.
For the record, there were 18 months left in George W. Bush’s term when Schumer argued that the Senate block any additional nominees the President may have made to the Supreme Court. The nation is now less than seven months away from electing Obama’s successor.
Does the Obama administration have a backup plan if the Supreme Court interprets ObamaCare according to its terms and prohibits federal subsidies to Americans in 36 states?
If so, top administrators at Health and Human Services, the Internal Revenue Service and Treasury aren’t sharing.
That lack of transparency – and the havoc it could wreck on millions of mandatory ObamaCare users – angers a group of powerful Senate Republicans.
“I want to make certain that the government has notified people who have signed up through the HHS insurance exchange – including the thousands of Georgians who were forced to enroll after ObamaCare cancelled their health plans – of the potential consequences of the Court ruling against the government, especially given the fact that the cost of the program could be significantly increased,” Senator Johnny Isakson (R-GA) said in a statement.
“The Obama administration needs to be forthcoming about its backup plans so my constituents can make their own backup plans.”
Isakson and other Republicans serving on the Senate Finance Committee sent a strongly worded letter to several government agencies demanding details of any contingency plans. In it they charge HHS Secretary Sylvia Mathews Burwell, Treasury Secretary Jacob Lew, and IRS Commissioner John Koskinen with “lack of candor” and “evad[ing] the issue when it was raised at hearings before the Committee this week.”
Consider this another unfulfilled promise of “the most transparent administration in history.”
If you can’t beat ‘em, join ‘em, and then fight like hell to save them.
That’s essentially the health insurance industry’s strategy when it comes to ObamaCare.
Unable to derail the Democrats’ health reform train in 2009 and 2010, most of the biggest players in the health insurance industry agreed to make peace with the Obama administration.
For their troubles the insurance companies won policy concessions like the individual mandate to ensure a captive market for their products, and a complicated bailout scheme to subsidize losses.
Then along came King v. Burwell, one of the cases challenging the legality of federal subsidies necessary to make ObamaCare plans affordable. (Necessary, but not, according to ObamaCare’s text, permitted in states that rely on the federal government’s insurance portal.)
The Supreme Court is set to hear oral arguments this spring, and many entities have submitted amicus or friend-of-the-court briefs to persuade the justices their way.
“Among those filing amicus briefs defending health reform are HCA, the American Hospital Association, America’s Health Insurance Plans, the National Alliance of State Health Co-ops, the Catholic Health Association of the United States, the American Cancer Society, and the National Association of Community Health Centers,” reports Bloomberg Business. “The insurance and medical industries share the administration’s goal of seeing millions more people covered because that translates into millions more customers seeking the services of carriers, hospitals, and doctors.”
If given a choice, many established businesses would prefer a guaranteed arrangement with the government rather than rely exclusively on the volatility of the market. It’s easy to see why. But discomfort to the health insurance industry should not trump the rule of law. If the IRS can rewrite ObamaCare to make money available where it has been prohibited, then perhaps another agency hence can also decide to cancel spending that is legally required.
No businessman wants to be on the wrong side of a one-way contract. Yet that’s precisely what will happen if the federal bureaucracy gets to change the terms of ObamaCare whenever it sees fit.
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.
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.
Even though Jonathan Gruber did his best to apologize for his incredibly damaging – and seemingly accurate – remarks about how and why ObamaCare was drafted, there was no place to hide from the bipartisan rebuke he received today from the House Committee on Government Oversight and Reform.
Gruber is the now infamous MIT professor and erstwhile “architect” of Democrats’ signature health reform law that called American voters “stupid” for not understanding basic economics and the deceptive policies embedded in ObamaCare.
Gruber’s comments have incensed Republicans, but they’ve also infuriated Democrats. Of all the anger directed at Gruber today, perhaps none was more forceful than that erupting from Rep. Elijah Cummings of Maryland, the ranking Democrat on the committee.
“As far as I can tell, we are here today to beat up on Jonathan Gruber for stupid – I mean absolutely stupid – comments he made over the last few years,” Cummings said. “Let me be clear, I am extremely frustrated with Dr. Gruber’s statements” because “They were irresponsibly, incredibly disrespectful, and did not reflect reality. And they were indeed insulting.”
We’ll see if any of this theater persuades the Supreme Court. Next spring the justices consider whether a section of ObamaCare should be interpreted, as written, to deny subsidies to citizens in 37 states that use the federal health insurance exchange. It’s an interpretation that Democrats oppose, but Gruber in at least one viral video adamantly confirms.
It’s been said that a political gaffe occurs when someone says the truth in public. Regarding ObamaCare’s deceptive elements, that may be Jonathan Gruber’s greatest offense.
On Tuesday this week Jonathan Gruber, the MIT economist and ObamaCare architect made infamous by a series of viral videos confirming suspicions of deceptive lawmaking, will appear before the House Government Oversight and Reform Committee.
It won’t be a pleasant meeting for Gruber.
Committee chairman Darrell Issa (R-CA) has titled the hearing, “Examining ObamaCare Transparency Failures.”
The biggest issue will be whether Issa and his fellow Republicans can get Gruber to confirm his previous statement that ObamaCare only grants insurance subsidies to people in states that operate their own health exchange. That’s the central issue in the case going before the Supreme Court next spring, and if the justices accept it, much of ObamaCare could be gutted.
Liberals are already trying to get ahead of any Gruber confessions under oath that could undermine their landmark domestic policy.
In a long-read piece at Politico, a former Democratic staffer tries to minimize the impact of Gruber’s comments by first saying he wasn’t involved in the policymaking process. That’s a fair point.
But then the staffer seems to completely confirm Gruber’s main argument – that the disputed statutory language was deliberately concocted to confuse people who weren’t in on the backroom political calculations.
The Politico reporter sums up the staffer’s argument this way: “The point of having the ‘Balkanized’ approach – state health exchanges plus a federal one for states that didn’t build their own – was to appeal to centrist senators, he said, since most liberal Democrats would have been happy just to have a federal one.”
As the staffer explains it, “No one was willing to fall on their swords to make sure states ran their own exchanges.”
In other words, the text in the law that limits the flow of subsidies to state exchanges is nothing more than an Orwellian wordplay. It doesn’t mean what it says. Rather, it’s designed to give ‘centrist’ senators political cover for voting to do the exact opposite – give subsidies to everyone.
Confused? Gruber isn’t.
This new rationale sounds an awful lot like the “tortured” drafting of ObamaCare that takes advantage of the “stupidity of the American voter” that Gruber’s been saying for years.
Kudos for being honest. Now let’s see if he will remain so under oath.
National Journal has a piece warning liberals not to dismiss the latest Supreme Court challenge to ObamaCare.
Specifically, it argues that liberals shouldn’t rely on the idea that the disputed statutory text – the part that limits federal subsidies to buy health insurance only to plans bought on an exchange “established by the State” – is simply a typo that can be brushed aside as a drafting error. Doing so would empower conservatives on the Court to say, in essence, that “they see the error, are powerless to fix it, and so must dismantle the statute.”
But here’s where the analysis goes off the rails. According to the NJ writer, the subsidies challenge should fail because “if you read the whole Affordable Care Act, taken together, the ‘established by the State’ line loses its clarity.”
In other words, when we read the relevant part of a federal statute and discover that it makes other parts of the same law undesirable – e.g. unsubsidized and thus unaffordable health insurance – the judges should ignore the plain text and substitute what they think Congress really intended.
That’s the kind of judicial activism that conservative justices like Antonin Scalia despise.
Or is it?
“…ObamaCare supporters have a pretty strong argument on the textual side because judges – even strict constructionists like Justice Antonin Scalia – have consistently said that courts should read the entire law as one unit when handling questions of statutory interpretation,” writes the author.
But that’s only true if the specific section under review is ambiguous. Zooming out to look at the entire law isn’t necessary when it’s plain to see that subsidies are clearly prohibited when States don’t operate their own exchanges. If ObamaCare is clear in the details and only loses clarity when read as a whole, that’s a problem for Congress to correct, not the Court.
No matter which way you read the subsidies provision, ObamaCare is proving itself to be a very badly written law.
With its surprising decision to hear oral argument on an ObamaCare subsidy challenge next spring, the Supreme Court of the United States is causing a flurry of activity as some states try to shore up their status ahead of a potentially costly decision.
“The consulting firm Avalere Health estimates that nearly 5 million people would see their premiums spike 76 percent, on average, if the Supreme Court strikes down subsidies in states that don’t operate their own exchanges,” reports Governing. “That estimate assumes a greater number of exchanges are considered federal, not state-based, but the question of what exactly constitutes a ‘state-based’ health exchange is murky.”
How murky?
“States have the option of running their own exchange completely (a state-based exchange), managing aspects of plan design or consumer outreach (a partnership exchange) or leaving everything to the federal government (a federally facilitated exchange),” according to the website.
Predictably, the federal Department of Health and Human Services isn’t divulging its exact criteria for categorizing an exchange, a stance that leaves states without a clear picture of how to prepare for a possible elimination of subsidies to residents.
Some states, like Nevada and Oregon that switched to Healthcare.gov – the federal website – are still considered to have state-based exchanges because they retain control over functions like plan approval, data collection and quality reporting. Others, like Utah and Mississippi, also fall into the state-based category because they host small business exchanges (but not individual exchanges).
So, the bottom line appears to be this: If the Supreme Court axes ObamaCare subsidies per the law’s text and intent, there’s a good chance President Barack Obama’s political appointees will engage in verbal gymnastics to find ways to define “state-based exchanges” in whatever manner best suits them.
No matter. Getting something fundamentally better than ObamaCare isn’t the Supreme Court’s job anyway. Best to pocket the subsidy win if it comes and work toward a policy consensus among the political branches that delivers real reform.
With ObamaCare architect Jonathan Gruber’s admissions that the controversial health law was sold on a pack of lies, the probability is rising that the Supreme Court will interpret the law as written and eliminate subsidies for millions of people.
If that happens, will Republicans in Congress be ready?
In order to lay the groundwork for an ObamaCare alternative that covers as many or more people than the current law, and costs less, Republicans in Congress could unite behind a framework proposed by conservative health experts James Capretta and Yuval Levin. Similar ideas have been endorsed by Senator Orrin Hatch (R-UT), the incoming-chairman of the Senate Finance Committee, and Rep. Paul Ryan (R-WI), the likely next chairman of the House Ways and Means Committee.
If the Supreme Court does strike down the subsidies, President Barack Obama won’t have much leverage since, “Much of ObamaCare would have just self-destructed due to its own design flaws and lack of public support, and Republicans would be offering a way to advance the law’s stated goal of assuring coverage – if not in the highly prescriptive and centralized manner the White House prefers”, writes Ramesh Ponnuru. “Democrats’ favored lines of attack on Republicans over health care – that they have no alternative, that they would take people off the insurance rolls – would have been neutralized.”
Sounds like a strategy worth pursuing.
In a surprise move, the United States Supreme Court announced today it will hear a third challenge to ObamaCare in as many years.
The case, King v. Burwell, is one of many lawsuits challenging a controversial IRS decision to extend federal subsidies to any person eligible to buy insurance on an ObamaCare exchange. The legal fight is over whether the text of ObamaCare permits subsidies to be given to citizens purchasing health insurance through Healthcare.gov, the federal exchange, when the law clearly says they cannot.
Supporters of ObamaCare say the disputed statutory language amounts to typos inconsistent with the spirit and purpose of the law. Opponents insist that the plain meaning of the words be honored, or risk the rule of law taking a back seat to bureaucratic whim.
The timing of the Supreme Court’s decision means that oral arguments will be held sometime in the spring with a final decision likely next summer. If the challengers are successful, King v. Burwell may go down in history as the lawsuit that signaled the beginning of the end of ObamaCare.
Add Indiana to the list of states arguing that ObamaCare’s subsidies can’t be used on Healthcare.gov, the federal exchange.
The challenge is the same mounted by other states contesting the IRS’s unilateral decision to go against the clear language of ObamaCare which makes subsidies available only on state-based exchanges, a restriction intended to induce states to shoulder the implementation costs for fear of angering residents by exposing them to ObamaCare’s real costs.
U.S. District Judge William T. Lawrence will decide whether Indiana’s case has merit in October. Precedent from other circuits isn’t all that helpful, since the D.C. Circuit upheld the statutory scheme while the Fourth Circuit sided with the IRS.
The silver lining: Whatever Lawrence and the appellate circuit decide will further fragment ObamaCare’s implementation, increasing the likelihood that the Supreme Court will weigh in.
Whenever that happens, hopefully there will still be five votes to uphold the plain meaning of the law.
H/T: Indianapolis Star
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.
Lost in all of the media hyperventilation about the Supreme Court’s Hobby Lobby decision yesterday (where the left is truly embarrassing itself over an extremely narrowly tailored decision) is the equally good news that came out of the case of Harris v. Quinn, which challenged Illinois’ requirement that home care workers had to contribute dues to the SEIU even if they didn’t want to join (an arrangement that was set up through a back room deal with now-imprisoned former Governor Rod Blagojevich). From The Hill:
The Supreme Court on Monday chipped away at the power of organized labor by ruling that some state workers cannot be forced to pay union fees.
In a 5-4 decision, the justices struck down a requirement that home care workers in Illinois contribute to a branch of the Service Employees International Union (SEIU), even if they choose not to join.
“A state may not force every person who benefits from this [union’s] efforts to make payments to the [union],” Justice Samuel Alito wrote in the majority’s decision.
It’s always the same story with big labor: their supposed benevolence relies on coercion. If people don’t want to join the union, by what right should they still be forced to pay them? And if the unions think the lack of dues leaves them vulnerable to free riding, then why not limit the terms of collective bargaining only to those workers who are actual members? The answer, of course, is that labor negotiates deals far better than they could receive in a competitive market, leading them to attempt to lock out anyone who might be willing to work for a lesser rate.
Expect to see the same outcome in Illinois that you did in Wisconsin when workers there got out from the unions’ thumbs: dues payers rushing for the exits. If big labor wants a viable future, they’ll have to start standing on their own two feet. The days when they can live off of others are quickly coming to a close.
Two years ago President Barack Obama decided to appoint three new members to the National Labor Relations Board, even though none of them could clear the U.S. Senate.
Blocked from getting what he wanted, President Obama installed the nominees anyway, arguing that the Senate was on recess; a move allowed under the U.S. Constitution’s Recess Appointments Clause.
There was just one little problem. The Senate had not recessed.
Republicans in the chamber anticipated Obama’s move and negotiated an agreement with majority Democrats to keep the Senate open every three days during the Christmas and New Year’s break in order to conduct business. Thus, as far as the Senate’s own records are concerned, the body never went on recess. By refusing to give its consent, the chamber, in effect, told Obama to nominate three new people.
He declined.
The fight now is before the Supreme Court, which today heard oral arguments from the Obama administration and counsel representing 45 members of the Senate Republican caucus, among others.
While there are a host of arcane and at times interesting constitutional questions to consider this particular case boils down to whether the Court thinks the President or the Senate has the final say as to when the Senate is in session.
The answer should seem obvious, but don’t underestimate the Court’s ability to choose wrongly.
Victory for President Obama in this suit would be a body blow to the Constitution. The Senate’s ‘advise and consent’ role is designed to ensure that only those qualified for high governmental service actually serve in such posts. Yes, the confirmation process is political, but that’s the name of the game when one is a political appointee. Sometimes you lose.
Once again, we have an instance where President Obama, unwilling to compromise, is trying to impose his will by fiat, constitutional processes be damned.
The Court’s ruling is expected in late June. For the good of the republic, it should find a way to rein in an out-of-control executive.
Earlier today a federal judge in New York ruled that the National Security Agency’s warrantless phone record collections are constitutional.
Because the decision conflicts with a previous ruling from the District of Columbia, today’s ruling makes it much more likely that the United States Supreme Court will eventually weigh in.
As always, the outcome will depend heavily on which frame the Court adopts.
In the D.C. case, Judge Richard Leon emphasized the extent to which the NSA’s program violated fundamental norms of privacy, and pronounced it unconstitutional. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on every single citizen for purposes of querying it and analyzing it without judicial approval,” wrote Leon.
However in New York, Judge William Pauley took a more sympathetic view of the government’s argument. To him the program “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.”
Though my inclination is to side with Judge Leon’s disapproval, I’m withholding judgment while Congress deliberates. As Judge Pauley correctly notes, “The question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds that it is. But the question of whether that program should be conducted is for the other two coordinate branches of government to decide.”
It’s a debate we can’t afford to take lightly.
CFIF on Twitter
CFIF on YouTube