Quote:

 

http://www.usatoday.com/story/opinion/2014/03/25/obamacare-irs-halbig-sebelius-health-care-insurance-column/6830651/

Hobby Lobby isn't today's most important case: Column
Halbig v. Sebelius could force Obama administration to follow its own law.

Tuesday, all eyes will be on a high-profile Obamacare case before the Supreme Court. But just a few blocks away, a lower court will hear a lesser-known Obamacare case that could have a far greater impact on the future of the law.

The Supreme Court hears oral arguments Tuesday in Sebelius v. Hobby Lobby, a case challenging the Obama administration's attempt to force private companies to purchase contraceptives for their employees contrary to the owners' religious beliefs. A ruling for Hobby Lobby would restore the religious freedom of potentially millions of employers and workers.

Just down the street, the Court of Appeals for the D.C. Circuit will hear oral arguments in Halbig v. Sebelius. Obamacare supporters call Halbig "the greatest existential litigation threat to the Affordable Care Act."

That description, while colorful, is not quite accurate. Halbig does not ask the courts to strike down any part of the law. It merely asks the court to force the administration to implement the law as Congress intended, a prospect that absolutely terrifies Obamacare supporters.
[...]

kbp

Mar 26 2014, 01:55 PM

Quote:

 

http://www.usatoday.com/story/opinion/2014/03/25/obamacare-irs-halbig-sebelius-health-care-insurance-column/6830651/

Hobby Lobby isn't today's most important case: Column
Halbig v. Sebelius could force Obama administration to follow its own law.

Tuesday, all eyes will be on a high-profile Obamacare case before the Supreme Court. But just a few blocks away, a lower court will hear a lesser-known Obamacare case that could have a far greater impact on the future of the law.

The Supreme Court hears oral arguments Tuesday in Sebelius v. Hobby Lobby, a case challenging the Obama administration's attempt to force private companies to purchase contraceptives for their employees contrary to the owners' religious beliefs. A ruling for Hobby Lobby would restore the religious freedom of potentially millions of employers and workers.

Just down the street, the Court of Appeals for the D.C. Circuit will hear oral arguments in Halbig v. Sebelius. Obamacare supporters call Halbig "the greatest existential litigation threat to the Affordable Care Act."

That description, while colorful, is not quite accurate. Halbig does not ask the courts to strike down any part of the law. It merely asks the court to force the administration to implement the law as Congress intended, a prospect that absolutely terrifies Obamacare supporters.
[...]

It's a good article, but rather windy in making a point. The short of the situation is Hobby Lobby deals with a regulation that violates rights (IMO), which could see new regulations, while Halbig would shut down all federal subsidies and related taxes in states operating under the federal web site according to law that can't legally be rewritten without Congress.

Quote:

 

http://www.forbes.com/sites/michaelcannon/2014/03/26/who-needs-hobby-lobby-when-youve-got-halbig-yesterdays-appellate-arguments-in-halbig-v-sebelius/

Who Needs Hobby Lobby When You've Got Halbig? Yesterday's Appellate Arguments In Halbig v. Sebelius
By Michael Cannon

On January 1, the IRS began imposing taxes and spending billions of taxpayer dollars in the 34 states whose ObamaCare Exchanges were established by the federal government. But ObamaCare says the IRS can tax and spend only through “an Exchange established by the State.” In Halbig v. Sebelius and three similar cases, employers and taxpayers are challenging those illegal taxes and outlays. The stakes are high. The IRS’s defenders warn Halbig poses “the most significant existential threat to the Affordable Care Act.” The plaintiffs counter the IRS is engaging in taxation without representation and misappropriating taxpayer dollars on a massive scale. (Jonathan Adler and I did much of the legal and legislative research underpinning these lawsuits.) Yesterday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in Halbig. (Listen to the audio.) The panel consisted of Judges Harry T. Edwards (a Carter appointee), Thomas B. Griffith (a George W. Bush appointee), and A. Raymond Randolph (a George H.W. Bush appointee). Judging by the comments and questions these jurists posed, I would guess Edwards is firmly in the government’s camp, while Randolph sides with the plaintiffs. Griffith is a tougher call. Yet while Randolph was clearly the most skeptical of the government’s case, Griffith was also quite skeptical.

The first part of the hearing essentially descended into a shouting match between Edwards and plaintiffs’ counsel Michael Carvin. Edwards accused the plaintiffs of wanting to gut the Act. It’s an ironic charge to level at people who are suing to force the government to adhere to the Act. But just take a moment to think about what Edwards is saying: hewing to what ObamaCare actually says would gut the Act.

Edwards demanded that Carvin produce evidence that anyone in Congress even cared about whether states would run the Exchanges. This was also odd. The statute and legislative history are replete with such evidence. The Act directs states to establish Exchanges. It provides unlimited start-up funds to states for that purpose. State-run Exchanges insulated ObamaCare from charges that it was a federal takeover of health care. Senators whose votes were crucial to passage, notably Ben Nelson (D-NE) and Joe Lieberman (I-CT), demanded that states run the Exchanges. Groups as varied as the National Association of Insurance Commissioners, the Blue Cross and Blue Shield Association, the New America Foundation, and the Heritage Foundation testified in favor of state-run Exchanges and against federal Exchanges. Even the government’s counsel, Assistant Attorney General Stuart F. Delery, later conceded, “Incentives were provided to states to establish their own Exchanges.”

Edwards challenged Carvin to explain how is it that, if Congress intended to use the subsidies to induce states into establishing Exchanges, so many states didn’t get the message. Here, Randolph interjected that many people were aware of this incentive. There was media coverage, and dozens of members of Congress wrote the IRS complaining about its attempt to gut this provision. But the better response is simpler: if states didn’t get the message, it’s because the IRS’s unlawful tax-credit rule misled them.

Randolph was just as critical of the government as Edwards was of the plaintiffs, if more understated. When the government’s lawyer argued that federally established Exchanges meet the requirement that Exchanges be “established by the State,” Randolph cut him off: “That is a leap. That is not statutory interpretation.”

Randolph also seemed to be the the most steeped in the statute and its legislative history. He repeatedly made the subtle yet powerful point that the information-reporting requirements of 26 U.S.C. 36B(f)(3) are in fact not part of the Patient Protection and Affordable Care Act. They are amendments made to the Internal Revenue Code by the Health Care and Education Reconciliation Act. That’s significant. If the PPACA authorized subsidies in federal Exchanges prior to the HCERA, then there is no need to cite the reporting requirements. If it didn’t, then the reporting requirements certainly did not add that authority, and there is no need to cite them. As it is, Congress passed two bills, neither of which authorized tax credits in federal Exchanges.

Randolph raised several issues that Jonathan Adler and I discussed in our amicus brief. On the claim that plaintiffs are focusing on just one isolated phrase in the law, Randolph noted that the subsidy-eligibility rules actually use the phrase seven times. (We counted nine.)

On the claim that no one in Congress contemplated withholding subsidies in federal Exchanges, he noted that one of the PPACA’s antecedents — a bill approved in 2009 by the Senate’s Health, Education, Labor, and Pensions Committee — also denied Exchange subsidies to residents of states that refused to establish an Exchange. That prohibition lifted after four years, but the bill permanently withheld subsidies if states refused to cooperate in other ways.

On the supposedly odd placement of the language restricting eligibility for subsidies (nominally, tax credits) to states that establish Exchanges, Randolph showed that its placement was not odd at all. Indeed, Congress had previously enacted almost identical tax-credit eligibility rules. In 2002, Congress created Section 35 of the Internal Revenue Code, which conditioned “Health Coverage Tax Credits” for certain individuals on their state enacting certain federally specified regulations. When Congress created ObamaCare’s refundable “premium-assistance tax credits” in Section 36B, it was basically copying what was already in federal law, including Section 35′s “coverage month” concept. Randolph even asked Delery, “Is 36B’s structure copied from Section 35?” Delery dodged the question.

Randolph also made a point that I’ve only ever seen raised in the Health Matrix article Adler and I coauthored: the reporting requirements make perfect sense in federal Exchanges, because they allow federal Exchanges to tell individual enrollees the exact size of the subsidy they would receive if their state establishes an Exchange. That would put tremendous political pressure on states to cooperate, and therefore advances the Act’s purpose of inducing states to operate Exchanges.

Randolph’s got some laughs when he suggested that the statute was poorly written but not absurd: “There is an absurdity principle, but there is not a stupidity principle. If the law is just stupid, I don’t think it’s up to the court to save it.” Hmm. ObamaCare as a stupid law…where have I heard that before?

The real question mark appears to be Judge Griffith. He was silent for much of Carvin’s presentation, save for a few mildly skeptical questions. (For example, he asked if anyone noticed this condition on subsidies other than Adler and me. As Randolph explained, the answer is yes.)

Griffith was much more engaged during, and skeptical of, the government’s presentation. He repeatedly stressed to the government that the tax-credit eligibility rules are crystal clear: a taxpayer must be enrolled “through an Exchange established by the State” in order to receive a tax credit. He stressed that the relevant question is not whether a federal Exchange is the same type of Exchange as one established by the state; the relevant question is who established the Exchange. He rather pointedly and amusingly pressed the government to admit that the Secretary of Health and Human Services is not a state. He asked the government why Congress did not make a federal Exchange the equivalent of a state-established Exchange, the way it did with Exchanges established by U.S. territories. He asked the government, “If I were to disagree with you and think established by the State under section 1311 means established by the State under section 1311, would your argument be over?” He asserted that the legislative history “is a wash” and doesn’t resolve the issue in either direction, presumably leaving only the statute. He stressed it is the government that bears the burden of justifying its departure from the plain meaning of the statute. He noted that, in any bill, Congress makes political compromises that frustrate one or another statutory purpose, and asked the government, “How are we supposed to account for that?” He asked the government whether, if Congress didn’t legislate clearly enough to fulfill its purpose, “is it our job to fix the problem?”

Griffith’s final question also poses a problem for the government. He asked about a notice of supplemental authority in which the government suggested the IRS might continue to issue subsidies and impose taxes through federal Exchanges even if the court declares the IRS has no statutory authority to do so. Griffith pointed out that such “28(j)” notices exist to apprise the court of new judicial rulings that bear on the instant case. But the most recent case the government cited in its notice is 15 years old. Judge Randolph added the government had already been given an opportunity to address the issue it raised in the notice, and called the government’s behavior “highly improper.” (Read my summary of the plaintiffs’ motion to strike the government’s notice, and Josh Blackman’s analysis.)

None of which tells us whether this potential swing vote will uphold or vacate the IRS’s tax-credit rule. But Griffith did seem very skeptical of that regulation’s legality.

Don’t let this post’s title confuse you. I deeply appreciate the efforts of those working to protect religious freedom from ObamaCare in Sebelius v. Hobby Lobby (which went to oral arguments yesterday before the Supreme Court) and similar cases. (Read the reactions to the Hobby Lobby hearing by my Cato Institute colleagues Ilya Shapiro and Roger Pilon.) The title is part transparent attempt to trick the search engines, and part reminder that while Hobby Lobby cannot solve Halbig’s problem, Halbig can solve Hobby Lobby’s problem.

Hopefully, this D.C. Circuit panel will invalidate the IRS’s illegal taxes and spending, and allow the law to work as Congress intended.

Quote:

 

http://www.weeklystandard.com/blogs/no-insurance-better-unapproved-insurance-under-obamacare_786056.html

No Insurance Is Better than Unapproved Insurance Under Obamacare
Obamacare penalizes the ‘wrong’ insurance 18 times more than no insurance.

...If your employer offers you insurance that doesn’t provide free ella, or anything else on the list of “preventive services”—as defined by Health and Human Services Secretary Kathleen Sebelius and ultimately by Obama—then it’s subject to a fine of $36,500 a year. But if your employer doesn’t offer you insurance at all, it’s subject to a fine of $2,000 a year. Actually, for now your employer’s choice is between a fine of $36,500 or $0, as Obama has extralegally decreed that fines for not providing insurance (but not fines for providing insurance that doesn’t cover all “preventive services”) will be waived until after we get to the other side of the midterm elections.

As Rep. Diane Black (R., Tenn.) put it after the oral arguments, “Only Obamacare could create a system that carries 18 times the fine for providing insurance coverage to employees than for not providing any coverage at all.”

Maybe it’s time for an alternative to Obamacare.

Quote:

 

http://www.foxnews.com/politics/2014/03/27/democrats-said-to-push-for-new-changes-to-obamacare-amid-midterm-fears/

Democrats push for new changes to ObamaCare amid midterm fears

Several Democratic senators moved Thursday to "improve" parts of ObamaCare, proposing numerous changes to the law amid concerns that it could cost Democrats House seats and possibly the Senate in November.

The proposals came from a half-dozen senators, some of whom are facing reelection in the fall and most of whom represent moderate-to-conservative states. Since Democrats currently control the Senate, the proposals will put Senate Majority Leader Harry Reid, D-Nev., in an uncomfortable position -- forcing him to decide whether to put the bills to a vote or sideline them, despite the political risks for his party's incumbents.

"There is more to be done," the senators wrote in an op-ed in Politico, outlining the proposed changes.

Sens. Mark Warner, D-Va.; Mark Begich, D-Alaska; Mary Landrieu, D-La.; Heidi Heitkamp, D-N.D.; Joe Manchin, D-W.Va.; and Sen. Angus King, I., Maine, are behind the proposals.

Among other ideas, they called for allowing "copper" plans on the government-run health exchanges. The new insurance plans would offer lower premiums and higher out-of-pocket costs than the "bronze," "silver" and "gold" options currently offered.

"I've always been a believer that the law was not perfect, but you should continue to work to improve it," Begich told The Wall Street Journal, which first reported on the proposals. "People are seeing that as it's implemented, there are tweaks you need to do and there's just nothing wrong with that."

The senators, while defending the law itself, proposed numerous other fixes, including restoring startup funds for "consumer-driven health insurance cooperatives" and directing state regulators to look at allowing insurance to be sold across state lines. Plus, they called for sparing employers with fewer than 100 workers from being required to offer health insurance to their staff.

Warner, who faces a formidable midterm challenge from former Republican National Committee Chairman Ed Gillespie, said on Fox News earlier this week that he supports allowing Americans to purchase health insurance across state lines.

Earlier this month, Republican David Jolly defeated Democrat Alex Sink in a Florida special election largely seen as a referendum on ObamaCare. Democrats, however, downplayed the loss in the Republican-leaning congressional district.

Republicans must pick up six seats to win control of the Senate. Conservative groups such as Americans for Prosperity are reportedly pouring million into races in which Democratic incumbents have supported ObamaCare.

House Democrats must gain 17 seats to win a majority next fall. It looms as a very steep challenge in view of the traditional midterm headwinds facing a party in control of the White House and a generally sour public mood, now compounded by controversy surrounding the health care law.

It is unclear if Reid, D., Nev., would bring any of the bills aimed at fixing ObamaCare to the floor. Democratic aides told The Journal that the effort has sparked debate about whether making the changes would return public attention to the health law's flaws.

Democratic strategist Steve Murphy said the fixes could help vulnerable lawmakers more than changes from the Obama administration that are immediately criticized by Republicans.

"Democrats should fight back hard on what eliminating ObamaCare would mean, and they also should demonstrate a willingness to make ObamaCare better," Murphy told The Journal......

• 
  
• Margaux J. Hall is the Center for Reproductive Rights Fellow at Columbia Law School.

Quote:

 

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/03/when_did_we_decide_it_was_ok_to_let_our_bosses_choose_our_health_insurance.html

Who’s the Boss?
Why are our employers making our health insurance choices in the first place?

• 
  
• One way to remedy this conflict would be by establishing policy that makes employers into legal fiduciaries—like investment and pension managers and others who safeguard our personal investments. Such fiduciaries are entrusted with duties of care and loyalty to those who benefit from their services. They must act in the sole interest of those they serve, without regard to their own financial, moral, or other preferences. Employers, acting as legal fiduciaries, could invest employees’ remuneration in insurance plans offering a diversified pool of health benefits that reflect employees’ needs. We could require employers to ask about employees’ coverage needs before selecting health insurance plans for the next enrollment year, a practice that is largely nonexistent to date. For example, through an annual confidential survey, employers could capture employees’ health needs, aggregate them, and approximate a best-fit health plan or plans to satisfy employees’ needs.
  
  Such a reconceptualization would be groundbreaking. Under this revised model, employers would act on behalf of employees and in their exclusive interest in buying health insurance. Employees’ needs—economic, moral, or otherwise—would come first.

Baldo

Mar 27 2014, 12:24 PM

Here’s How We Can Fix Obamacare if We Act Now and Stop Pretending the Problems Don’t Exist

By Robert Laszewski - March 26
snip

kbp

Mar 27 2014, 12:29 PM

Baldo

Mar 27 2014, 12:24 PM

Here’s How We Can Fix Obamacare if We Act Now and Stop Pretending the Problems Don’t Exist

By Robert Laszewski - March 26
snip

Response: http://s1.zetaboards.com/Liestoppers_meeting/single/?p=874525&t=5402308

• 
  
• The Obama administration won the case in January at the D.C. District Court, where Clinton-appointed Judge Paul L. Friedman labeled the challengers' claim "unpersuasive." He said Congress designed the federal exchange on behalf of states, so it functions as such for the purpose of the law. A ruling against the government, Friedman said, would "violate the basic rule of statutory construction that a court must interpret a statute in light of its history and purpose."
  
  and
  
  
• "Don't you have a special burden to show from legislative history that that doesn't mean what it appears to mean?" [Judge Thomas B.] Griffith asked the government's lawyer. "If we know the clear purpose of Congress and yet they don't legislative clearly enough to achieve that purpose, is it our job to fix the problem?"
  
  and
  
  
• The chief congressional architects of Obamacare -- including Senate Majority Leader Harry Reid (D-NV), erstwhile House Speaker Nancy Pelosi (D-CA), former Senate Finance Chair Max Baucus (D-MT) and others -- signed a brief arguing that the law never intended or suggested that the premium tax credits were confined to state-run exchanges. The brief, submitted by the liberal Constitutional Accountability Center, said there is "no support" for the challengers' position.

Quote:

 

http://www.cato.org/sites/cato.org/files/documents/adlercannon_amicus.pdf
...BRIEF OF JONATHAN H. ADLER AND MICHAEL F. CANNON AS AMICI CURIAE IN SUPPORT OF THE APPELLANTS
(page 19)
G.Senator Reid Strengthened the Language Restricting Tax Credits to State-Established Exchanges Prior to Final Passage
When Senate leaders merged the Finance and HELP bills to create the PPACA in Sen. Reid’s office, they strengthened the Finance language conditioning premium-assistance tax credits on states establishing an Exchange.

The Finance bill used a cross-reference to define “coverage months” as occurring only when taxpayers purchased insurance through an Exchange “established by the State.” While Reid and his staff were overseeing the crafting of the PPACA, that already clear provision was augmented with language explicitly repeating, within the “coverage month” definition, that coverage months occur only when taxpayers enroll in a qualified health plan “through an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act.” Compare America’s Healthy Future Act of 2009, supra, § 1205, with PPACA § 1401, 26 U.S.C. § 36B(c)(2)(A)(i).

Note also that, while Senate leaders were strengthening the Finance language conditioning Exchange subsidies on state cooperation, they dropped the Finance language conditioning small-business tax credits on states enacting the required rating rules. This change had no practical effect because the PPACA still conditioned Exchange subsidies on states implementing those and other insurance regulations.