LTC8K6

Sep 30 2014, 10:02 PM

Federal district court rules against Obamacare subsidies on federal exchange

http://www.powerlineblog.com/archives/2014/09/federal-district-court-rules-against-obamacare-subsidies-on-federal-exchange.php

LTC8K6

Sep 30 2014, 10:02 PM

Federal district court rules against Obamacare subsidies on federal exchange

http://www.powerlineblog.com/archives/2014/09/federal-district-court-rules-against-obamacare-subsidies-on-federal-exchange.php

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• The court is aware that the stakes are higher in the case at bar than they might be in another case. The issue of consequences has been touched upon in the previous decisions discussed. Speaking of its decision to vacate the IRS Rule, the majority in Halbig stated “[w]e reach this conclusion, frankly, with reluctance.”
  
  Other judges in similar litigation have cast the plaintiffs’ argument in apocalyptic language. The first sentence of Judge Edwards’ dissent in Halbig is as follows: “This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (‘ACA’).” Concurring in King, Judge Davis states that “[a]ppellants’ approach would effectively destroy the statute . . . .” Further, “[w]hat [appellants] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance. . . ..”
  
  Of course, a proper legal decision is not a matter of the court “helping” one side or the other. A lawsuit challenging a federal regulation is a commonplace occurrence in this country, not an affront to judicial dignity. A higher-profile case results in greater scrutiny of the decision, which is understandable and appropriate. . . .
  
  This is a case of statutory interpretation. “The text is what it is, no matter which side benefits.” Such a case (even if affirmed on the inevitable appeal) does not “gut” or “destroy” anything. On the contrary, the court is upholding the Act as written.
  I've yet to find out what the exact points are in the Pruitt v. Burwell case, though I know it deals with the subsidies and taxes. Anyway, the federalism that was to have been the basis for the need of States cooperating seems to have been lost in all the cases. If Obamacare was written to give the fed's the authority to establish exchanges in States as they have, AND IF THAT IS LEGAL, why was there any need to have States involved ever (besides getting votes to pass the law)?
  
  Congress is free to amend the ACA to provide for tax credits in both state and federal exchanges, if that is the legislative will. As the Act presently stands, “vague notions of a statute’s ‘basic purpose’ are nonetheless inadequate to overcome the words of its text regarding the specific issue under consideration.”
  
  It is a “core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” “But in the last analysis, these always-fascinating policy discussions are beside the point. The role of this Court is to apply the statute as it is written – even if we think some other approach might ‘accor[d] with good policy.’”

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http://www.forbes.com/sites/michaelcannon/2014/09/30/pruitt-v-burwell-irss-illegal-obamacare-taxesspending-suffer-another-defeat-in-federal-court/

Pruitt v. Burwell: IRS's Illegal ObamaCare Taxes/Spending Suffer Another Defeat In Federal Court

The U.S. District Court for the Eastern District of Oklahoma handed the Obama administration another – and a much harsher — defeat in one of four lawsuits challenging the IRS’s attempt to implement ObamaCare’s major taxing and spending provisions where the law does not authorize them. The Patient Protection and Affordable Care Act provides that its subsidies for private health insurance, its employer mandate, and to a large extent its individual mandate only take effect within a state if the state establishes a health insurance “Exchange.” Two-thirds (36) of the states declined to establish Exchanges, which should have freed more than 50 million Americans from those taxes. Instead, the Obama administration decided to implement those taxes and expenditures in those 36 states anyway. Today’s ruling was in Pruitt v. Burwell, a case brought by Oklahoma attorney general Scott Pruitt.

These cases saw two appellate-court rulings on the same day, July 22. In Halbig v. Burwell, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ordered the administration to stop. (The full D.C. Circuit has agreed to review the case en banc on December 17, a move that automatically vacates the panel ruling.) In King v. Burwell, the Fourth Circuit implausibly gave the IRS the thumbs-up. (The plaintiffs have appealed that ruling to the Supreme Court.) A fourth case, Indiana v. IRS, brought by Indiana attorney general Greg Zoeller, goes to oral arguments in federal district court on October 9.

Today, federal judge Ronald A. White issued a ruling in Pruitt that sided with Halbig against King, and eviscerated the arguments made by the (more senior) judges who sided with the government in those cases.

Noting that Obama administration wants to issue Exchange subsidies in states with federal Exchanges even though the PPACA (quoting Halbig) “unambiguously restricts the [Exchange] subsidy to insurance purchased on Exchanges ‘established by the State,’” Judge White argues that the government’s interpretation (quoting the Tenth Circuit in Sundance Assocs., Inc., v. Reno) “leads us down a path toward Alice’s Wonderland, where up is down and down is up, and words mean anything.” As evidence, White quotes the concurring opinion in King: “‘[E]stablished by the State’ indeed means established by the state – except when it does not[.]” [Just ask the pigs who is more equal here!]

Declining to grant Chevron deference to the IRS’s interpretation of the Act, White notes the IRS can’t even clear Chevron Step One because Congress did indeed speak clearly to the precise question at issue:

• 
  
• “[T]he only “clear and unambiguous language” on this “precise question” is that only those covered “through an Exchange established by the State under section 1311 of the [ACA]” may receive “premium assistance amounts.” There is no “clear and unambiguous language” that one who purchases on a federal Exchange is so entitled…

Even if Congress hadn’t, White suggests the government should also lose at Chevron CVX -1.4% Step Two. Quoting Utility Air Regulatory Group v. EPA, “‘We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance’ [citation omitted]. Tax credits of the scope involved here would appear to fit within this category.”

White dismisses the Halbig dissent, which argues “established by the State” is a “term of art that includes any Exchange within a State.” White responds: “it is an unusual term of art, in that one word is statutorily defined in a way that precludes the alternative reading. Under [the Act's definition of 'State'], ’State’ cannot mean the federal government. This definition is dispositive when combined with the interpretive hurdle presented by the phrase ‘established by.’”

Though the district court in Halbig and scholars like Nicholas Bagley have argued the plain-meaning interpretation of “established by the State” would lead to “anomalies,” White writes, “Neither court of appeals adopted the ‘anomalies’ argument.”

White exposes the Halbig dissent and the King concurrence as politically motivated. He quotes the former attacking the plaintiffs’ motives (a “not-so-veiled attempt to gut” the Act). He quotes the latter wagging its finger at the plaintiffs (“[w]hat [appellants] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance”). White responds:

• 
  
• “a proper legal decision is not a matter of the court “helping” one side or the other. A lawsuit challenging a federal regulation is a commonplace occurrence in this country, not an affront to judicial dignity…This is a case of statutory interpretation. “The text is what it is, no matter which side benefits.” Bormes v. United States…Such a case (even if affirmed on the inevitable appeal) does not “gut” or “destroy” anything. On the contrary, the court is upholding the Act as written. Congress is free to amend the ACA to provide for tax credits in both state and federal exchanges, if that is the legislative will.

Regarding claims that the plaintiffs’ case is absurd, White again quotes the Tenth Circuit (in Robbins v. Chronister): “A statute is not ‘absurd’ if it could reflect the sort of compromise that attends legislative endeavor.” He then notes that the recently unearthed comments from Jonathan Gruber demonstrate the plain meaning of the text, and the plaintiffs’ insistence that the government honor that text, are not absurd.

As for the Halbig dissent’s claims that “[a]ppellants have not explained why Congress would want to encourage States to operate Exchanges rather than the federal government doing so, nor is there any indication that Congress had this goal,” White responds, “This court finds such an indication in Section 1311 of the Act itself, which purports to direct States to establish Exchanges.”

It’s a judicious opinion, and now that we (once again) have different courts in different jurisdictions that have issued opposing rulings, Pruitt greatly strengthens the case for the Supreme Court to review King.

• “[T]he only “clear and unambiguous language” on this “precise question” is that only those covered “through an Exchange established by the State under section 1311 of the [ACA]” may receive “premium assistance amounts.” There is no “clear and unambiguous language” that one who purchases on a federal Exchange is so entitled…

LTC8K6

Oct 2 2014, 03:58 PM

http://twitchy.com/2014/10/02/so-heres-president-stompy-foot-sneering-at-fox-news-spewing-absurd-obamacare-lies-photos/

So, here’s President Stompy Foot sneering at Fox News, spewing absurd Obamacare lies [photos]

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http://www.reuters.com/article/2014/10/02/us-usa-court-healthcare-idUSKCN0HR1OW20141002

Supreme Court to decide Idaho Medicaid reimbursement dispute

The U.S. Supreme Court is set to decide in a case coming from Idaho whether private medical providers can sue a state in order to raise Medicaid reimbursement rates to deal with rising medical costs.

The justices agreed on Thursday to hear an appeal filed by the state of Idaho, which says that medical providers have no legal recourse to sue. The case focuses on rates for certain residential services.

Medicaid is a federal health insurance program for lower-income people that is administered by the states. Idaho's lawyers say that in order to receive Medicaid funding, they are required only to comply with the Medicaid Act and related regulations.

In a December 2013 ruling, the 9th U.S. Circuit Court of Appeals said the providers could sue and ruled in their favor on the merits.

The ruling noted that state officials recommended increases in reimbursement rates in the late 2000s but they were never implemented because the Idaho legislature declined to appropriate funds.

A decision is due by the end of June.

The case is Armstrong v. Exceptional Child Center, U.S. Supreme Court, No. 14-15.

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http://online.wsj.com/articles/bosses-face-affordable-care-act-deadline-1412202286

Bosses Face Affordable Care Act Deadline
Employers Must Make Changes to Employees' Health Insurance Before Year-End

...A minority of business owners are considering trimming their head counts below the 50 full-time-worker cutoff or reducing their workers' hours rather than comply with the requirement, which begins in January for companies with 100 or more employees. Others have run the numbers and concluded that their best financial move is simply to skip the requirement and instead pay penalties, $2,000 for each full-time worker after the first 30...

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http://www.npr.org/blogs/health/2014/10/01/353015519/obamacares-first-year-howd-it-go

Obamacare's First Year: How'd It Go?

Exactly one year ago, the Obamacare insurance exchanges stumbled into existence. Consumers struggled to sign up for its online marketplace — and the Obama administration was pummeled. Eventually, HealthCare.gov's problems were mostly fixed, and two weeks ago, the administration announced 7.3 million people have bought insurance through it so far this year.

So, was the health exchanges' first year a success — or something less?

Ask President Obama, and he says you measure the Affordable Care Act's success this way:

"The bottom line is this: Under this law, the share of Americans with insurance is up and the growth of health care costs is down," Obama said in April.

[...]

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http://www.npr.org/2014/10/01/353048433/a-year-later-healthcare-gov-has-found-its-footing-but-problems-remain

A Year Later, HealthCare.Gov Has Found Its Footing But Problems Remain

Robert Siegel talks to Marilyn Tavenner, administrator for the Centers for Medicare and Medicaid Services, about the one-year anniversary of the Affordable Care Act insurance marketplace rollout.

ROBERT SIEGEL, HOST: Joining us now is Marilyn Tavenner, as administrator of the Centers for Medicaid and Medicare, she runs healthcare.gov. Marilyn Tavenner, thank you very much for joining us.

MARILYN TAVENNER: Thank you.

SIEGEL: From what we hear, the online exchanges are now working well on the front end, where people sign up, but not so well on the backend, where insurers should be getting information about enrollees. Why is that still problematic?

TAVENNER: Well, I think there is some confusion about what is working on the backend. In fact, insurers do get information about who's enrolled. And we exchange information back and forth with insurers and that's how we are aware that we have 7.3 million enrolled to date. The backend that has yet to be completed, that people often referred to as what we call some of the financial management package, which is not critical for consumers. But in 2015 and beyond will be critical for insurers.

SIEGEL: But does that mean that the exchange system remains, a year into its life a work, in progress?

TAVENNER: I would say it is a work in progress in terms of completing the financial management package but I'd say we've come a long way. And we have done a great deal of technology improvements, particularly around the customer experience. We've also now this year will be adding not only new enrollees but reenrollment. So there's very little left to be completed. And what needs to be completed in financial management is actually work that was not planned to come online until mid-'15.

[...]

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http://www.newrepublic.com/article/119652/federal-judge-rules-against-obamacare-subsidies-pruitt-case

Obamacare Just Took a Hit in Court. Will SCOTUS Care?
District judge backs lawsuit that would end subsidies for millions
By Jonathon Cohn

The latest legal challenge to Obamacare just won a round in court. On Tuesday, a federal district judge ruled in favor of a lawsuit challenging the federal government’s authority to provide millions of people with tax credits for buying private health insurance. The decision, in a case called Pruitt v. Burwell, came from a Republican-appointed judge in Oklahoma. His opinion was succinct, strongly worded and betrayed not a hint of self-doubt.

The decision has no immediate effect. The judge stayed his ruling, pending the Obama Administration's likely appeal to the Tenth Circuit Court of Appeals. The real question now is what effect (if any) Tuesday's announcement has on the justices of the Supreme Court, who are contemplating whether to hear a similar lawsuit and make a definitive ruling on the matter.

As you may know, the dispute in these lawsuits isn’t about constitutional philosophy [Isn't there something UNconstitutional about an agency rewriting the law if absent the authority to do so? Are not the cases to determine if it is UNconstitutional?]. It’s about the statutory language of the Affordable Care Act—and what Congress was trying to do when it wrote the law ["trying to do"?? More like what they did do, it's only "trying" if you find it ambiguous.]. Obamacare creates insurance marketplaces, through which people can buy regulated insurance and, depending on their incomes, receive tax credits that are worth hundreds and sometimes thousands of dollars a year. For many people buying coverage, these tax credits are the difference between being able to buy coverage and having to go without it. But States have the option of building their own marketplaces or asking the federal government to do the job instead [NO, the States do not have to "ask" the federal government to do it. If that was accurate, the States not wanting Obamacare could just ignore it]. According to the lawsuits, the law does not authorize the federal government to disperse those tax credits unless states are running the marketplaces on their own. Actually, they must "establish" the exchange. They can't even run a fed established exchange according to the law.]

The two men who thought up the lawsuit and created its legal template, Michael Cannon of the Cato Institute and Jonathan Adler of Case Western Law School, say this was no mere drafting error—that Congress intended to write the law this way, in order to give states incentive to take on responsibility for creating the marketplaces. The people directly responsible for writing the law, along with most of us who covered its enactment, say that’s nonsense ...if you ignore the two unpassed bills originally written by the "people directly responsible for writing the law.". The goal, in our view, was always to make sure residents of all states had access to the tax credits, regardless of what state officials decided. (There's a separate, but also important, question of whether to read one particular passage of the law literally and in isolation, or to consider it in context of other provisions.) Were this the "goal," why do we have a law that involved the states? If the plan was to merely provide States the opportunity to participate with their own exchange, why didn't the law establish the federal exchange as the primary source and States as the secondary source? If they could NOT pass the law without including Section 1311, the only way we can assume this "goal" is to believe they wrote the law ambiguously on purpose so a government agency could rewrite it later or assume all writing our laws are complete idiots that can't read what they write. The argument the IRS/HHS makes is they created confusion that permits agencies to rewrite the UNconfusion later.

Previously, federal district judges in two other parts of the country rejected the lawsuits. Initially, appeals of those decisions produced a split decision. One three-judge panel, from the Fourth Circuit Court of Appeals, ruled unanimously to reject the lawsuit. Another panel, at the District of Columbia Circuit, upheld the lawsuit by a two-to-one majority. That second case is under further review, however, because the D.C. Circuit granted an “en banc” hearing, which means the entire active panel—that is, all the sitting judges on the Circuit—have agreed to hear the case.

So far, only Republican-appointed judges have sided with the plaintiffs. Tuesday’s ruling, in a case called Pruitt v. Burwell, came from Ronald White, whom President George W. Bush appointed in 2003. The rulings against the plaintiffs have come predominantly from judges appointed by Democrats, although one district judge who rejected the lawsuit, James Spencer, was a Reagan appointee, and one of the Fourth Circuit judges got his permanent appointment from President George W. Bush—although this was after getting a recess appointment from President Bill Clinton.)

The conflicting rulings from the D.C. and Fourth Circuits prompted the lawsuit’s plaintiffs to appeal the case they lost, King v. Burwell, to the Supreme Court [That is NOT what "prompted" the appeal in King. Reads like the en banc hearing UNprompts the King case!]. But once the D.C. Circuit agreed to hear the case en banc, that eliminated the “split”; technically speaking, the Fourth Circuit has now ruled to reject the lawsuit and the D.C. Circuit is still pondering the matter. Without a split, most legal experts say, the Supreme Court is less likely to hear the case.

Does Tuesday’s ruling change that likelihood? Does it make it more likely the Supreme Court will hear the case? I put that question to a few legal scholars who have followed the case closely. Here’s what I heard back from Nicholas Bagley, a law professor at the University of Michigan who has written extensively on this subject for The Incidental Economist:

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• It probably doesn't matter much what one district court says. But the cert petition in King asks the Supreme Court to take the case because splits could arise down the line. Pruitt makes that possibility seem a little more real, which may slightly increase the odds that the Court takes King even in the absence of a split.

Timothy Jost, law professor at Washington and Lee University, seemed if anything more skeptical:

• 
  
• If the Tenth circuit affirmed, that would make cert likely. But I doubt the Supreme Court will weigh in until there is an actual split between the circuits.

But Adler seemed to think the case could loom a little larger:

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• If this decision has any effect it will increase the likelihood of Supreme Court review. It shows that the validity of the IRS rule may remain in dispute no matter what the D.C. Circuit does, and given the significant reliance interests that counsel a quick and final resolution of this controversy, it could encourage more careful consideration of the cert petition even before the D.C. Circuit rules en banc. In the end, however, whether the high Court takes this case will depend on how significant the Court considers the issues at stake.

Added Cannon:

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• It’s a judicious ruling, and it could push the Supreme Court to review the related case of King v. Burwell. Not because the Eastern District of Oklahoma sets the high court’s agenda, but because Judge White exposed how silly the government’s and the Fourth Circuit’s arguments really are.
  

Bagley and Jost have said they oppose the case on the merits. Adler and Cannon support it. Make of everybody's comments (including mine) what you will.