• 
  
• Dan McLaughlin @baseballcrank
  When explicit language drops out of a bill before it's final, courts treat that as proof it was removed on purpose
  http://www.washingtonpost.com/blogs/plum-line/wp/2014/07/29/senate-documents-and-interviews-undercut-bombshell-lawsuit-against-obamacare/
  Senate documents and interviews undercut ‘bombshell’ lawsuit against...

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• ...This is not to say that section 36B [the section of PPACA that provides for subsidies] necessarily incorporated this thinking; we agree that inferences from unenacted legislation are too uncertain to be a helpful guide to the intent behind a specific provision.
  
  But the HELP Committee’s bill certainly demonstrates that members of Congress at least considered the notion of using subsidies as an incentive to gain states’ cooperation.

Quote:

 

http://online.wsj.com/articles/adam-j-white-no-need-for-a-halbig-rehearing-1407195952

No Need For a Halbig Rehearing
The D.C. Circuit's own rules and one of its judges point the way forward for the recent ObamaCare ruling
By Adam J. White
Aug. 4, 2014 7:45 p.m. ET

The D.C. Circuit Court of Appeals ruled last month in Halbig v. Burwell that the Obama administration's regulations for federal health-insurance exchanges violate the Affordable Care Act's plain language. But the administration hopes that its loss will prove short-lived: On Friday the Justice Department formally petitioned the court to rehear the case en banc—that is, for all 11 active judges to vacate the original three-judge panel's decision.

Why would the court grant an en banc rehearing? Emily Bazelon offered a blunt answer in a July 22 piece for the online magazine Slate: "The D.C. Circuit (finally!) has four Obama appointees on it," and so Democrats now outnumber Republicans. "Presto," she wrote, a loss today "can be a winner tomorrow."

But if the D.C. Circuit rehears the case en banc, it would be a sharp break from history. The D.C. Circuit rehears virtually none of its cases. Each year the court's three-judge panels make roughly 500 rulings, but the court averages roughly one en banc rehearing. This year has produced a bumper crop: two. The previous year: zero.

The low numbers are thanks to the court's high standard, found in the Federal Rules of Appellate Procedure: En banc rehearing "is not favored and ordinarily will not be ordered" unless the case satisfies one of two standards. First, an en banc rehearing may be needed to "secure or maintain uniformity of the court's decisions." A three-judge panel is not allowed to overrule old precedents, even when precedents are in conflict; only the full court can do so, en banc.

Second, en banc rehearing is appropriate for what the federal appellate rules call cases of "exceptional importance." For the D.C. Circuit, this standard has been met almost exclusively by cases raising serious constitutional issues. Over the past decade seven of the nine cases reheard en banc raised difficult questions of constitutional law, such as the rights of Guantanamo detainees or of terminally ill patients.

Cases that will substantially affect the court's own workings also can be deemed of "exceptional importance." In 2011, the court sat en banc to decide whether taxpayers could file lawsuits challenging IRS procedures for obtaining tax refunds.

Halbig checks none of these boxes. It is a straightforward statutory interpretation case. The administration's supporters seem to believe that Halbig has "exceptional importance" because the Affordable Care Act is exceptionally important to them and the panel's decision was, in their eyes, wrong. But that is a dangerous interpretation of the standard, for reasons best stated by Judge Harry Edwards —the very D.C. Circuit judge who dissented from the panel decision in Halbig.

"Obviously, no judge agrees with all of the decisions handed down in the circuit," Mr. Edwards wrote in a 1987 case involving the Department of Health and Human Services. But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do "substantial violence to the collegiality that is indispensable to judicial decision-making" [his italics]. Rather, en banc review must be reserved for "the rarest of circumstances," Mr. Edwards wrote, cases with "real significance to the legal process."

Mr. Edwards played an important role in the court's history on precisely this issue. In the 1980s, acrimony on the D.C. Circuit was well known. But in the 1990s, Mr. Edwards became chief judge and restored collegiality, in part by greatly reducing the number of en banc rehearings, to three a year in the 1990s from roughly six a year in the 1980s.

Subsequent chief judges maintained this trend, rehearing roughly one case en banc each year. His successor, Douglas Ginsburg, wrote in the journal Judicature last year that the court's steep decline in en banc rehearings "reflect[s) in part the increasing level of mutual trust and respect among the judges."

The D.C. Circuit's current chief judge is Merrick Garland, a Bill Clinton appointee, but the decision to grant the government's request for an en banc rehearing lies with a majority vote of all 11 active judges, who have an open-ended timeline for issuing a ruling.

Those who claim that the D.C. Circuit will rehear the case en banc do no service to the court's judges, who know the threat that overtly politicized en banc rehearings pose to the court's collegiality. The controversy surrounding HHS's federal exchanges should be resolved promptly by the Supreme Court. There's no need to tarry any longer at the D.C. Circuit.

kbp

Aug 5 2014, 11:51 PM

http://www.washingtonpost.com/politics/plan-to-simplify-2015-health-renewals-may-backfire/2014/07/27/40a3336a-158d-11e4-88f7-96ed767bb747_story.html
Plan to simplify 2015 health renewals may backfire

It is still not fixed!

Quote:

 

http://www.nytimes.com/2014/07/31/us/politics/problems-with-healthcaregov-could-force-delays-in-fall.html
Investigators Warn of Possible Perils in Fall With Health Site

....In testimony prepared for the hearing, Andrew M. Slavitt, the No. 2 official at the Centers for Medicare and Medicaid Services, said consumers would have “a better shopping experience” this fall. “This coming year will be one of continued improvement, but not perfection,” said Mr. Slavitt, who joined the government three weeks ago...

chatham

Aug 6 2014, 09:43 AM

Looks like this could end back in the supreme court where roberts gets a chance to change his mind.

Quote:

 

http://www.cnsnews.com/news/article/tatiana-lozano/justice-ginsburg-buying-contraceptives-others-one-obligations-citizens

Justice Ginsburg: Buying Contraceptives for Others is One of the ‘Obligations That Citizens Have’

Providing women with cost-free health-insurance coverage for contraceptives is one of the “obligations” of citizenship, U.S. Supreme Court Justice Ruth Bader Ginsburg said Wednesday in an interview with Yahoo’s Katie Couric.

“Some people say there’s something troubling about mandating a private company though, to do something that is against their deeply held religious beliefs. What would you say to those people?” Couric asked Ginsburg, one of four dissenting justices in the court’s landmark Burwell v. Hobby Lobby decision.

“When you’re part of a society, you can’t separate yourself from the obligations that citizens have,” the justice replied.

[...]

“Your 35-page dissent has been described as blistering and scathing,” Couric noted to Ginsburg. “Why did you find this decision so disturbing?”

“The decision that an employer could refuse to cover contraceptives meant that women would have to take care of that for themselves or the men who cared,” Ginsburg replied. “Contraceptive protection is something that every woman must have access to control her own destiny,” she added.
[Self-reliance gets lost here somehow!]

“I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief. I had never seen the free exercise of religion clause interpreted in such a way.”

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• We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

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• Congress shall make no law... prohibiting the free exercise [of religion]...