This should be interesting to watch:
A group of small business owners (and individuals) in six states today are suing the federal government over an IRS regulation imposed under the Affordable Care Act (Obamacare), which will force them to pay exorbitant fines, cut back employees’ hours, or severely burden their businesses. Complaint can be viewed here.
The Affordable Care Act authorizes health insurance subsidies to qualifying individuals in states that created their own healthcare exchanges. Those subsidies trigger the employer mandate (a $2,000/employee penalty) and expose more people to the individual mandate. But last spring, without authorization from Congress, the IRS vastly expanded those subsidies to cover states that refused to set up such exchanges. Under the Act, businesses in these nonparticipating states should be free of the employer mandate, and the scope of the individual mandate should be reduced as well. But because of the IRS rule, both mandates will be greatly enlarged in scope, depriving states of the power to protect their residents.
Michael Carvin, partner at Jones Day, who co-argued the Supreme Court Obamacare cases in March, 2012 and who represents the plaintiffs in this lawsuit, stated: “The IRS rule we are challenging is at war with the Act’s plain language and completely rewrites the deal that Congress made with the states on running these insurance exchanges.”
33 states have refused to set up these exchanges. The IRS, per the complaint, is ignoring that ability given by the states by the law and proceeding as if it didn’t exist. The argument is the IRS is overstepping it’s authority.
“Agencies are bound by the laws enacted by Congress,” said Sam Kazman, general counsel of the Competitive Enterprise Institute (CEI). “Obamacare is already an incredibly massive program. For the IRS to expand it even more, without congressional authorization and in a manner aimed at undercutting state choice, is flagrantly illegal.” CEI is coordinating the lawsuit.
We’ll see. Given the way the law is interpreted anymore, I wouldn’t at all be surprised to see the IRS upheld (or the suits be dismissed out of hand). Such is the lack of respect and confidence I hold for our “legal system” anymore.
A federal judge has scrapped the Obama Administration’s rules for drilling. The new rule required oil and gas producers to do additional environmental studies for each new site (or if increased drilling was to be done at an existing site) even though such studies had been completed on the entire tract previously. Under the Bush-era ‘categorical exclusion’ rule, the existing studies and approval for the entire tract were sufficient and subsequent studies for new drilling on that tract were waived.
The Energy Policy Act of 2005 allows the BLM and Forest Service to invoke categorical exclusions and skip new environmental review for drilling permits under certain circumstances.
The circumstances include instances where companies plan to disturb relatively little ground and environmental review already has been done for that area. A categorical exclusion also can be invoked when additional drilling is planned at a well pad where drilling has occurred within the previous five years.
The Obama administration had issued new rules which revoked categorical exclusions (used extensively in the Western US until last year) and required new environmental studies for each new planned drilling or expansion of drilling, slowing the process to a crawl.
The plaintiff, Denver-based Western Energy Alliance, argued that the new rule had created delays that thereby added cost and materially hurt (and thereby created “recognizable injury”). The administration rejected the argument saying it was “speculative. However, the federal judge, U.S. District Judge Nancy Freudenthal , did not:
"Western Energy has demonstrated through its members recognizable injury," she said. "Those injuries are supported by the administrative record."
This, of course, is good news for the oil and gas industry, good news for job hungry Americans and, ironically, a ruling the “focused on jobs like a laser” administration is sure to appeal.
At least for now:
Acting with unusual speed, the state Supreme Court on Tuesday ordered the reinstatement of Gov. Scott Walker’s controversial plan to end most collective bargaining for tens of thousands of public workers.
The court found that a committee of lawmakers was not subject to the state’s open meetings law, and so did not violate that law when it hastily approved the collective bargaining measure in March and made it possible for the Senate to take it up. In doing so, the Supreme Court overruled a Dane County judge who had halted the legislation, ending one challenge to the law even as new challenges are likely to emerge.
The changes on collective bargaining will take effect once Secretary of State Doug La Follette arranges for official publication of the stalled bill, and the high court said there was now nothing to preclude him from doing that.
This, however, is not the end to law suits against the bill, it’s just one case which has been settled that had stopped implementation of the law in its tracks. In fact, this finding was more about how the lower court judge had exceeded her authority:
The court ruled that Dane County Circuit Judge Maryann Sumi’s ruling, which had held up implementation of the collective bargaining law, was in the void ab initio, Latin for invalid from the outset.
"The court’s decision …is not affected by the wisdom or lack thereof evidenced in the act," the majority wrote. "Choices about what laws represent wise public policy for the state of Wisconsin are not within the constitutional purview of the courts. The court’s task in the action for original jurisdiction that we have granted is limited to determining whether the Legislature employed a constitutionally violative process in the enactment of the act. We conclude that the Legislature did not violate the Wisconsin Constitution by the process it used."
The court concluded that Sumi exceeded her jurisdiction, "invaded" the Legislature’s constitutional powers and erred in halting the publication and implementation of the collective bargaining law.
So – the law must now be officially published for it to take effect and according to the court, there’s nothing standing in the way of that happening.
I wonder if we’ll be treated to another spectacle of teachers and the like throwing a collective tantrum. Oh, wait, it’s summer – they’re on vacation. With no works stoppage available to them to make their point, probably not.
Ihe 11th Circuit Court of Appeals, based in Atlanta, opened its session examining the federal healthcare law recently passed by Congress and derisively known as ObamaCare with these words from its Chief Judge Joel Dubina:
"I can’t find any case like this," Dubina said. "If we uphold this, are there any limits" on the power of the federal government?
That was followed by:
Judge Stanley Marcus chimed in: "I can’t find any case" in the past, he said, where the courts upheld "telling a private person they are compelled to purchase a product in the open market…. Is there anything that suggests Congress can do this?"
Now frankly, I think some people expected a much more receptive audience among the judges since two of the three are Clinton appointees. Dubina is a George H.W. Bush appointee. What both Dubina and Marcus make clear is this is a case – or at least certain aspects of it are – without precedence.
And we all know how federal justices rely on precedence to guide their rulings. I’m encouraged by those opening remarks. The third judge on the e judge panel repeatedly asked the lawyers about the possible effect of striking down the mandate while upholding the rest of the law.
The administration, represented by U.S. Solicitor Gen. Neal Katyal argued the following about the individual mandate:
Katyal argued that healthcare was unique and unlike the purchase of other products, like vegetables in a grocery store.
"You can walk out of this courtroom and be hit by a bus," he said, and if an ill or injured person has no insurance, a hospital and the taxpayers will have to pay the costs of his emergency care.
Katyal argued that Congress could reasonably decide that because everyone will probably need medical care at some time in their lives, everyone who can afford it should pay part of the cost. And he said the courts should uphold the law under Congress’ broad power to regulate commerce in this country.
Congress could clearly require that a person who shows up at a hospital without insurance buy it on the spot, he said, and requiring the purchase in advance should not be the decisive difference.
What, of course, is not reasonable is Congress deciding how one must “pay part of the cost” or compelling them to do so under the auspices of the government. It is the individual’s responsibility to pay such debt as in all other areas of life. But, argues the administration:
Parts of the overall law should still survive, said government lawyer Katyal, but he warned the judges they’d make a "deep, deep mistake" if the insurance requirement were found to be unconstitutional. He said Congress had the right to regulate what uninsured Americans must buy because they shift $43 billion each year in medical costs to other taxpayers.
So, the case boils down to $43 billion a year being the reason for a gigantic intrusion in the market by the government which claims it will do a better job of holding down costs via mandating coverage. This is the same government which suffers $60 billion a year in Medicare and Medicaid fraud (I’d call that some serious “shift[ing]” of costs to other taxpayers, wouldn’t you?
Anyway, back to the story – POLITICO is the only news organization that seemed to find some hope for the administration:
The judges’ questions were mixed enough to give encouragement to both sides in the oral arguments in the multistate lawsuit, the most significant of the legal challenges against Obama’s health care overhaul.
But then, immediately said:
But supporters of the health law cringed as the judges spent a significant amount of time questioning both sides over how much of the law they would have to void if they struck down the most controversial provision at the center of the suit: the requirement to buy insurance.
And that brings us back to our old friend, “severability”:
“The government would obviously be somewhat troubled by the questions about severability, which is something that the court only reaches if it were to invalidate one of the provisions,” said Walter Dellinger, a former acting solicitor general who wrote a brief defending the law for Democratic members of Congress.
This particular case of the many pending is probably the highest profile case as it was brought by a collection of 26 states.
Regardless of how this turns out, however, I think it is pretty clear this one is headed to SCOTUS for final disposition. However, the rulings of the judges involved will indeed be scrutinized by the justices in Washington DC when the time comes. If they find against the administration, I think on has to consider such a ruling, if founded on good legal ground, may create the precedent that SCOTUS needs to follow suit and throw the individual mandate (and thus the law for all intents and purposes) out the window.
Rep. Kevin Brady (R-TX) had his staff do a study of the ObamaCare bill after its passage to assess exactly what Democrats had blindly passed into law. He also asked his staff to put a chart together to represent the health care system under that law.
The result is mind-boggling and troubling. And if you figured the Secretary of Health and Human Services was the new defacto health care czar, backed by the IRS, you’re correct.
Below is a thumbnail of the chart to give you a flavor of its complexity. Brady admits only represents a third of what is in the bill after which it got too crowded. Said Brady, "it’s actually worse than this."
You can see a full size representation of the chart here. As you peruse it read the legend carefully. You’ll notice 3 areas color coded – “new government”, “expanded government” and “private”. It also charts “new relationships”, such as regulations, requirements and mandates, reporting requirements, oversight and money flow.
Evident to anyone with the IQ of a mushroom is the incredible complexity of what our masters in Congress cobbled together in haste and passed before anyone could actually read the thing through and study the probable consequences. The chart includes:
$569 billion in higher taxes;
$529 billion in cuts to Medicare;
Swelling of the ranks of Medicaid by 16 million;
17 major insurance mandates; and
The creation of two new bureaucracies with powers to impose future rationing: the Patient-Centered Outcomes Research Institute and the Independent Payments Advisory Board.
As might be expected, ObamaCare fulfills almost all the promises of the critics – top driven, bureaucratic, complex, expensive and set up to ration health care.
The chart gives visual evidence of the type monstrosity that has been foisted upon the American public by Democrats. Says Kevin Hassett:
This clearly is a candidate for most disorganized organizational chart ever. It shows that the health system is complex, yes, but also ornate. The new law creates 68 grant programs, 47 bureaucratic entities, 29 demonstration or pilot programs, six regulatory systems, six compliance standards and two entitlements.
Yes friends, the DMV teaming up with the Post Office, have now “organized” your health care and promise it will be “better and less expensive”.
And don’t forget – your new health care czar has the power to make judgments about health care that, by law, cannot be challenged either through an administrative process or the courts. So you are stuck with whatever the Sec HHS decides. That means:
A sprawling, complex bureaucracy has been set up that will have almost absolute power to dictate terms for participating in the health-care system. That’s what the law does to government. What it does to you is worse.
Based on the administration’s own numbers, as many as 117 million people might have to change their health plans by 2013 as their employer-provided coverage loses its grandfathered status and becomes subject to the new Obamacare mandates.
Those mandates also might make your health care more expensive. The Congressional Budget Office predicts that premiums for a small number of families who buy their insurance privately will rise by as much as $2,100.
Finally, and as noted above, there is to be a huge expansion in Medicaid “paid for” by cutting care to the elderly:
To pay for this expansion, the bill takes $529 billion from Medicare, with roughly 39 percent of the cut coming from the Medicare Advantage program. This represents a large transfer of resources, sacrificing the care of the elderly in order to increase the Medicaid rolls.
Another revenue source are the “Cadillac plans” – for those who have them and pay for them, the gig’s up:
Front and center among the new taxes is the 40 percent excise tax on those lucky people with so-called Cadillac health plans. The higher insurance costs that are driven by the government mandates will push many more ordinary plans into Cadillac territory.
As we’ve discussed, the bill relies on a constant revenue stream from these insurance plans from now on, assuming everyone will pay the 40% increased cost to keep their plans. That’s not likely at all, and cutting these plans will effect millions – many of whom bought in lock, stock and barrel, to the promise “if you like your doctor and you like your plan, you can keep both”.
Look at this chart and tell me how you do that.
Yesterday a federal judge in VA ruled that the state of Virginia had “standing” to sue the federal government over the law. That, of course, means nothing more than the lawsuit moves forward, but it is an important first step in repealing this monstrosity or at least the more intrusive and odious parts of it. Obviously it doesn’t ensure success in that endeavor and the White House typically believes it is on the side of angels and the Constitution when it comes to running our lives.
We’ll see. But clearly Nancy Pelosi was right when she said “we have to pass the bill to see what’s in the bill”. Now that we have this chart, we know what’s in the bill – the largest power grab by the federal government since the income tax.
“Change” you can believe in, huh?
A very interesting sentence in the judge’s injunction against the Arizona immigration law caught my eye yesterday. In her ruling, which voided much of the law, Judge Susan Bolton said:
“Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely pre-empted by federal law to be enforced,” she said.
Of course the real status quo is federal non-enforcement of immigration laws – thereby driving the state of Arizona and other states to take matters into their own hands.
That’s not the status quo Judge Bolton is talking about, but it is the reality of immigration enforcement in this country.
This obviously isn’t the end of the road for the law, but I’d guess it’s on life support as the appeals process goes forward. Bolton’s ruling is likely to reflect how the other levels of the federal judiciary will rule on the law.
I have to admit to being a bit surprised that she ruled against law enforcement checking immigration status while processing someone for a different reason and left intact the portion of the law making it a crime to stop a vehicle in traffic or block traffic to hire someone off the street. However she did block a provision that barred illegal immigrants from soliciting work in public places.
On the political side of things, AZ’s Democratic Attorney General, a possible candidate for governor, thinks he has a winner:
Terry Goddard, the Arizona attorney general who opposed the law and is a possible Democratic opponent to Ms. Brewer, was quick to condemn her for signing it. “Jan Brewer played politics with immigration, and she lost,” he said in a statement.
Brewer can only hope he keeps saying that until the election, because I’d guess – as much of a hot button as this is in AZ and because of the overwhelming support of the AZ voters – it’s really a loser for Goddard and the Democrats.
Even John McCain and Jon Kyle weighed in on the ruling:
“Instead of wasting taxpayer resources filing a lawsuit against Arizona and complaining that the law would be burdensome,” Mr. McCain said in a joint statement with Senator Jon Kyl, Republican of Arizona, “the Obama administration should have focused its efforts on working with Congress to provide the necessary resources to support the state in its efforts to act where the federal government has failed to take responsibility.”
But of course, the failure of the administration to take responsibility is the ‘status quo’, and it appears, unfortunately, that it will be “preserved”.
But Chuck Schumer is promising a “flurry of votes” on the bill until it finally passes. Republicans held solid on this attempt to get around the Supreme Court ruling that found the former campaign finance bill unconstitutional on 1st Amendment grounds.
Senate Democrats were only able to muster their 59 votes, which, of course has Ezra Klein and others calling for an end to the 60 vote Senate rule for cloture.
I say the act is defeated for now for a reason. And that reason, as usual, is Olympia Snow (R-ME):
Olympia Snowe (Maine), whose vote was closely watched on the issue, said the bill wasn’t in a position yet where she could support it.
Key word is “yet”. The promise in that word is Democrats can do something that will put her in a position to support it.
But back to Schumer. He, of course, claims the “health” of our democracy rests on its passage. Actually the health of our democracy rests on removing Senators like him from office, but here’s his statement:
"It’s the amount of money, not who you are, that is affected. And so we’ve seen a campaign of desperation, of full muscle, to try to do everything they can to stop this bill because they realize, as already in some campaigns we have seen, how this will fundamentally change the balance of American politics," he said. "It will make the average citizen feel more and more remote from his or her government. It will hurt the fabric of our democracy."
I would posit that the average citizen couldn’t feel more remote from the government than they do now, and this bill’s passage or non-passage has absolutely zero to do with that.
In fact, the average citizen finds the more and more it hears from Senators like Chuck Schumer and sees them in action, the more that citizen realizes that they have little use for the Constitution – except to wrap themselves in it when it is politically expedient to do so – and will take every opportunity to attempt to insert government control where that document promised government wouldn’t be allowed.
It isn’t refusing to limit the 1st Amendment that’s damaging to the “fabric of our democracy”, it’s Senators and other lawmakers who attempt to do it that are the threat.
The common sense is found in the decision of Judge Martin Feldman. In his opinion, all the pertinent and sensible questions that should have been a part of the Obama administration’s decision making process are asked – and, to most, the answers are obvious.
If some drilling equipment parts are flawed, is it rational to say all are? Are all airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines? That sort of thinking seems heavy handed, and rather overbearing.
Over-reaction is one way those that are risk averse and not used to dealing with a crisis handle situations like this.
Throwing common sense out the window, the administration acted like the potential for another Deepwater Horizon was imminent and only shutting everything down would ensure such an occurrence wouldn’t happen. Yet for thousands of square miles, rig after rig has been producing for years without any sort of comparable problem. In fact, Deepwater Horizon is the outlier in deepwater drilling.
It was also an emotional and political response, instead of fact-based one of which our cool, calm and deliberative President is supposed to be famous. Again the judge sticks it to the administration:
Nonetheless, the Secretary’s determination that a six-month moratorium on issuance of new permits and on drilling by the thirty-three rigs is necessary does not seem to be fact-specific and refuses to take into measure the safety records of those others in the Gulf. There is no evidence presented indicating that the Secretary balanced the concern for environmental safety with the policy of making leases available for development. There is no suggestion that the Secretary considered any alternatives…
Of course he’s talking about Secretary Ken Salazar, but it is understood that this decision to declare a 6 month moratorium on drilling came from the top. Judge Feldman notes the administration’s decision was an arbitrary decision, not one that carefully weighed the facts and safety history of the industry and then made a deliberate decision based in fact. Apparently, as the judge notes, no other alternatives were considered.
Lastly, Judge Feldman chastises the administration about their poorly thought-out decision and the impact it has on those that live in the region:
An invalid agency decision to suspend drilling of wells in depths of over 500 feet simply cannot justify the immeasurable effect on the plaintiffs, the local economy, the Gulf region, and the critical present-day aspect of the availability of domestic energy in this country.
Thankfully the judiciary is looking after the “small people” and their livelihoods even if the administration isn’t. Of course, the administration will appeal this common sense decision.
No surprise there.