Skip to comments.Lawsuits that Could Make the Decrepit HealthCare.Gov Look Like a Hiccup
Posted on 11/03/2013 9:40:05 AM PST by Kaslin
Last week, I discussed the importance of generating additional legal challenges to the IRSs attempt to tax, borrow, and spend $700 billion, under the rubric of ObamaCare, yet contrary to the clear language of the statute and Congress intent. Four lawsuits have already been filed to challenge those illegal taxes and spending. The plaintiffs include two attorneys general, more than a dozen school districts, three private employers and eight individual taxpayers. A ruling for any of these plaintiffs would make the problems with ObamaCares decrepit HealthCare.gov web site look like a hiccup.
Last week, there was activity in one of those cases, Halbig v. Sebelius. Tomorrow, there will be hearing on another, King v. Sebelius.
The Patient Protection and Affordable Care Act directs states to establish health insurance exchanges, directs the federal government to establish Exchanges in states that do not, and offers subsidies to certain taxpayers who enroll in qualified health plans through an Exchange established by the State. (The subsidies are technically tax credits, though they are tax reduction in name only.) The mere availability of those subsidies triggers penalties against individuals under the laws individual mandate, while the issuance of such subsidies triggers penalties against employers under its employer mandate. In a final rule purporting to implement the laws tax-credit rules, the IRS announced it would issue subsidies in all states, even the 34 states that do not have an Exchange established by the State.
Legal challenges to the IRSs attempt to tax, borrow, and spend $700 billion, under the rubric of ObamaCare.
Jonathan Adler and I explained the problems with that rule in our law-journal article, Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA. This Cato Institute study offers a laymans version of the arguments.
In Halbig v. Sebelius, three private employers and four individual taxpayers have challenged that IRS rule in a federal court in Washington, DC. All seven plaintiffs are located in states that have opted not to establish an Exchange. They allege the IRSs decision to offer unauthorized subsidies in their states will subject them to financial penalties that Congress did not authorize and force them to take costly steps to avoid those penalties.
Notes on Halbig Oral Arguments
Last Monday, U.S. District Judge Paul L. Friedman heard oral arguments on the governments motion to dismiss Halbig, and the plaintiffs request that the court issue a preliminary injunction against the IRS rule. Here are a few items of interest from my notes.
At the end of Mondays hearing, Friedman asked the parties to reconvene the very next day, when he issued an oral opinion denying both the governments motion to dismiss the case, and the plaintiffs motion for a preliminary injunction.
Courts Ruling Rebuffs the IRS and Its Defenders
Friedmans denial of the governments motion to dismiss was a serious blow to the IRS and its defenders. It was the second time a federal court has held that a plaintiff has standing to challenge the IRS rule. The first came in August, when a federal judge in Oklahoma ruled against the governments motion to dismiss that states challenge to the IRS rule in Pruitt v. Sebelius. Friedman found that plaintiff David Klemencic likewise had standing. Both courts rejected the litanies of arguments the government offered, such as that the plaintiffs alleged injury was too speculative and not ripe for adjudication.
These dual rulings dealt a further blow to the credibility of the IRSs defenders. The agencys earliest and most ardent defender is a law professor at Washington & Lee University named Timothy Jost, who was influential in the drafting of the PPACA and has been influential in its implementation. He even attended the signing ceremony along with, in his words, secretaries and congress people and various other leaders who had worked on the bill.
In 2010, when 18 state attorneys general first challenged the PPACAs mandate that states expand their Medicaid programs, Jost dismissed their legal claims as being so devoid of legal authority that the attorneys general should be sanctioned under Rule 11 of the Federal Rules of Civil Procedure and be held personally liable for the governments defense costs. As we all know, the Supreme Court ruled 7-2 for the attorneys general on their Medicaid challenge.
In 2011, when critics first noted the IRSs tax-credit rule was illegal, Jost admitted that the statute plainly restricts tax credits to states that establish Exchanges, but later backtracked and changed his story.
Jost also dismissed the critics reading of the statute as absurd by claiming there was no coherent policy reason for restricting subsidies to state-established Exchanges. Only later did we learn that Jost himself had offered the rationale for this feature of the law in early 2009.
Finally, in 2011, both Jost and George Washington University law professor Sara Rosenbaum confidently claimed that no one would have standing to mount a legal challenge to the IRSs attempt to issue subsidies through federal Exchanges. Jost later backtracked to say that only employers would have standing.
The courts proved both professors wrong. The federal court in Oklahoma showed they were wrong on employer standing, while Judge Friedman has shown they were wrong on individual taxpayers having standing.
Halbig Proceeds to the Merits
Though Friedman denied the plaintiffs request for a preliminary injunction, which would have immediately blocked the IRS rule, he acknowledged the issue is of some urgency to both sides and announced, I want to do it quickly. Attorneys for both sides agreed to make all motions and file all relevant briefs in November. Friedman will hear oral arguments on December 3, and will enter final judgment by February 15 though he certainly could (and ideally would) rule before the IRS begins dispensing the disputed funds on January 1.
Friedman did not tip his hand on the merits of the case, but heres what he had to say (according to a transcript of his oral opinion thats not yet available online):
So, what about success on the merits? Even if I assume that there even if there were some threat of irreparable harm to Mr. Klemencic, what about the merits? If the sliding scale analysis still applies, the plaintiffs would have to show, since Ive said I didnt find any irreparable harm, a particularly strong likelihood of success on the merits. And I dont think the plaintiffs have made that showing. And let me be very clear what Im saying here because this is important to you and to the world at large.
The plaintiffs make a very good argument. We spent a lot of time on this yesterday. That the words in the statute, an Exchange, quote, established by a state, should be construed literally and that federal Exchanges are not established by a state. The defendants have a good argument, too, at least a credible argument, that when you view this in the context of the entire statute and the overall scheme of things, and when you apply Chevron to the regulation, that theyre likely to win on the merits
So, all Im saying is that if, on preliminary injunction, in a case where I find no irreparable harm, the plaintiffs have the burden of showing a particularly strong likelihood of success on the merits, I dont think theyve done that. They have made an argument that may ultimately be successful. The defendants have made an argument that may ultimately be successful. And as I delve further into the statute, with the assistance of additional briefing by the parties, the strength of each partys position will become clearer.
(Emphasis added, based on my recollection.)
Oral Arguments in King Tomorrow
A federal court in Richmond will hear oral arguments tomorrow in a similar case. In King v. Sebelius, four individual taxpayers are challenging the IRS rule and have requested a preliminary injunction. Tomorrow, the court will hear arguments on that motion. Again, if granted, an injunction could stop the IRS from issuing subsidies in the 34 states with federal Exchanges.
For more, have a look at this Los Angeles Times article on the lawsuits.
And keep checking back here for more updates.
This will only escalate implementation of Single Payer (although I’m not sure SCROTUS would rule that Constitutional), because people being kicked off their health care plans is not going to be reversed.
The flat stone is nicely skipping over the water while the crowd is watching. Eventually, it will sink in!
If they think there will be lawsuits from private employers and individual taxpayers, wait until doctors try to actually get paid for services rendered under the unAffordable Don’t Care Act.
The train wreck signup data has to match the doctors invoices identifying individual patients.
I’m still trying to figure out the feds can regulate an insurance company who sells a product only in, say, Texas. How do the feds have authority to tell them what kind of product they can sell when there is no interstate commerce involved?
They can’t.. Insurance companies are to weak kneed to fight it.
I’ve been saying since the failed website rollout that the lawsuits will be what eventually derails 0zer0care. Now that the law is in place, everyone that is fined/taxed and couldn’t sign up on the website because of the failure of the govt to provide a working website will now have standing to sue because they can prove real harm courtesy of the IRS fine/tax. This could be millions of people that have lost private coverage due to 0zer0care and are being forced onto the non-working govt exchange. The ambulance chasing lawyers have got be drooling at all the class action lawsuits that are coming. The iron is too rich. Lawyers are one of the biggest backers of the dumbcrats, and it will be those same lawyers that are going to be their biggest problem with 0zer0care.
Plus you are correct when you talk about doctors not getting paid. That is the other shoe that is going to drop. Those people lucky enough to sign up for 0zer0care on the glitchy exchanges are going to find that their policies are probably so garbled that no one knows what they are covered for. So when the provider tries to collect from the insurance company, there is going to be all kinds of errors and finger pointing. You can pretty much assume that the insurance companies realize that this whole clusterfark is going to COST them money, not make them money. They will be in line with doctors/providers and the public in starting their own lawsuits. 0zer0care is a lawyers wet dream and a nightmare for everyone else, especially the dumbcrats.
Day by day I am starting to hold out hope that America is not over
Ie. more people voting who take and don’t work and voting D forever with 50+ %. Greece.
But a funny thing happened on the way to amnesty and single payer
They coddled together a wish list of guvmint care dating back through Hildebeest in 1993 and (hiccup) dead Kennedy from way back.
And somehow got it passed with no R votes.
And put it off past elections.
Roberts called it a tax and sent it back
And now- the implementation
EVERY body is concerned about health
Their clumsy attempt to take over is exposing who these people really are
To THEIR core constituencies
. Regular housewives who buy the caring for the poor crap.
Rich folks here in CA
Kids who know nothing
I mean this thing the PPACA. Is sooooooo bad. Soooo poorly run
It just may chink that armor of ignorance and deceit that has been so carefully advanced by the media for a half century or more
Given the stupidity of elected democrats. And their stubbornness
We could be in for the long haul here of a huge stick to pound relentlessly them with
Hearing Obummer say over and over you can keep.
Still. I sometimes wonder if anything can end the spell folks who vote D are under
Only the guvmint actually killing them might be it
In spite of Rush’s repeatedly loud warnings, I see no basis in the current law for a single payer system.
The congress must legislate a single payer
Obamacare was FUBAR from its very conception and it is painfully obvious that no member of Congress voting for this 3,000 page monstrosity ever read the bill let alone had any debate about its contents.
There cannot be enough lawsuits against Obamacare, IMO.
What if the opposite happens. What if the people accidentally wake up and reject any further attempts from government to fix this any further. I must be delusional. That will never happen in the real world even though it should. It’s become too easy for many to rely on others for their basic needs.
Under SCOTUS Commerce Clause jurisprudence going back to the thirties, if you fart in Colorado the Fed can regulate what you eat and mandate anti-flatulence meds on the theory that the sweet smell of your gas could drift over into Kansas, requiring some farmer to pause in his combining to roll up the windows. This could impact how much corn he harvests that day and thus prices on the corn market.
Basically, the enumerated powers provision of our Constitution, and the ninth and tenth amendment’s in the Bill of Rights, have been interpreted out of existence. And even if perchance some errant federal judge were to rule that your farting in Colorado had insufficient effect on interstate commerce to survive a tenth amendment challenge, Congress now knows that according to Chief Justice Robert’s preposterous pretzel-twisting logic, all it has to do to have any legislation whatsoever survive constitutional challenge is impose a penalty on the behavior it disfavors and call the penalty a tax - although Roberts would undoubtedly be willing to rewrite the law to make the penalty a tax, as he did with ObamaCare.
Face it. Under SCOTUS jurisprudence, the federal government can do anything it damn well pleases. You might as well throw away your copy of the Constitution. It’s a meaningless document today, and has been since the 1930’s.
“feds”, not “Fed”. Autocorrect got me again.
And what about people moving from one state to another? Doesn't that mean new insurance? What if they move a few times a year? etc,etc
The congress must legislate a single payer
I think the theory is that after the insurance companies screw everyone by dropping millions of policies (not that Obama gives them any choice in the matter), there will be an undeniable emergency. And Congress wont be able to allow it to continue - and the only way out for the people is to be for the Congress to pass single (i.e., monopoly) payer (i.e., tune-caller).
If Roberts could rule that 0-care is a tax, he could also find the the US government is a state. The other leftist bozos will have no problem ruling that the US government is a state because it is a state according to the UN and the UN has supremacy over the US.
The congress must legislate a single payer
The 2014 elections are of supreme importance. The rats will try every dirty trick there is. And who do we have to fight them? The IRS tried to take out the Tea Party (can you believe how bad this is???) and the GOPe doesn't care. It's up to us.
The answer is your handle.
If the treacherous tyrants prevail, they will lose...... for ever
America demands Justice for the Fallen of Benghazi!
“When they came for the Tea Party, I did not care because I was not a member”......
Exactly. My prediction is that Obamacare will cause so much strife, suffering, and economic dislocation, that Congress' credibility will be so utterly low that they won't be able to pass such legislation.
In the end, the American people are going to demand that Obamacare be ripped out by its roots and cast into the fire.
No they won't, because nobody is going to do anything. Why bury them, because when it reaches that point, is exactly the time you're going to need them in hand.
Which is the agenda, spoken or not, of the push to move the House and Senate deep into the hands and power of the Demon Rat party in 2014.
That is certainly the precedent. Scalia and Thomas regularly ridicule extensions of that in dissenting rulings.
Its very length is proof to any logical person that there was never any intent for it to succeed as advertised. All one need know is that the government intends to reform health care and you know that the results will be disastrous REGARDLESS of intent. To know the length of the bill is to know that no human could possibly read, understand and retain the meaning of all that without years of study and even then most people lack the capacity to understand it even if such a thing could be written in a coherent manner which is impossible at that length. Then when you have legislators admitting they don’t know what is in it yet they vote for it anyway and the speaker of the house makes the astounding statement that it must be passed before you can find out what is in it it becomes blatantly obvious that there was NEVER any benign intent behind this absurd monstrosity. The thing that is so maddeningly frustrating to me is that so many voters still cannot seem to grasp the evil intent behind this assualt on human dignity.
Oh contrare. The Insurance companies stand to make trillions of dollars in the final cut. They're obombacare's biggest proponents. Pretending like they are victims and "only doing what the law says" they "have to do" keeps them shielded from any examination that will shed light on this truth. There is a lot of blood on the insurance companies hands and they love it. They are orgasmic with the reality that every single person in America now HAS TO buy insurance. They are also excited that they will now no longer have as many, if any, insurance agents they will have to share the booty with and... obombacare's exchanges will help to insure that smaller, less established insurance companies cannot compete. Ever belong to a Union? These exchanges are set up the same way. It's a good'ol boy network. If "we" like you you can join. If we don't... take a hike.
No... the antichrist (aka - barack o bamah) knows exactly what he is doing and who to align with.
... or the government will buy it for them, from said companies. Same thing as far as they are concerned.
Republicans really are in the stupid party. All they have to do is start pointing out this is not about affordable care. It’s about affordable insurance. And it even failed on that issue.
People who have nothing to lose will eventually lose it, expect to see politicians suffer for voting for this law.
I expect some people whose hearts are utterly broken over the loss of someone they love as a result of Obamacare will reach out and touch someone in the power structure.
When people have nothing to lose, they lose it.
I’m guessing that’s what they are counting on.
129 million losing their health might not turn out as expected, though.
To them, that’s a lot less people to worry about and less mouths to feed.
“How do the feds have authority to tell them what kind of product they can sell when there is no interstate commerce involved?”
How ‘bout “Authoritay Uber Alles”?
I don’t think that “single payer” is inevitable. The GOP has outright control of a 26 of the states. Dems only have 19. The final five are mixed.
Health care is by and large a local phenomenon - licensing of medical practitioners, siting of hospitals and facilities, etc. Therefore costs are mostly a local phenomenon. These states can do a lot to undermine federal control and lower costs to their residents.
Also, if we have “sanctuary” cities for illegals, why not sanctuary states for health care providers and their patients?
If ‘Single Payer’ goes to SCROTUS, it might die there even with Roberts.
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