Posted on 10/31/2013 6:32:12 AM PDT by Kaslin
A few days ago an article the LA Times announced LA Times More legal trouble for Affordable Care Act.
The Affordable Care Act proposes to make health insurance affordable to millions of low-income Americans by offering them tax credits to help cover the cost. To receive the credit, the law twice says they must buy insurance "through an exchange established by the state."
But 36 states have decided against opening exchanges for now. Although the law permits the federal government to open exchanges instead, it does not say tax credits may be given to those who buy insurance through a federally run exchange.
Apparently no one noticed this when the long and complicated bill worked its way through the House and Senate. Last year, however, the Internal Revenue Service tried to remedy it by putting out a regulation that redefined "exchange" to include a "federally facilitated exchange." This is "consistent with the language, purpose and structure … of the act as a whole," the Treasury Department said.
But critics of the law have seized on the glitch. They have filed four lawsuits that urge judges to rule the Obama administration must abide by the strict wording of the law, even if doing so dismantles it in nearly two-thirds of the states. And the Obama administration has no hope of repairing the glitch by legislation as long as the Republicans control the House.
This week, U.S. District Judge Paul Friedman in Washington, a President Clinton appointee, refused the administration's request to dismiss the suit. Instead, he said the challengers had put forward a substantial claim, and he promised to issue a written ruling.
"This is a problem," said Timothy Jost, a law professor at Washington and Lee University. "This case could have legs," although "it was never the intent of Congress to establish federal exchanges that can't do anything.
Might Such a Challenge Work?
After reading the LA Times article, I pinged a couple of very bright lawyers and asked if there was any chance such a strategy might work. One of them replied ....
Hello Mish
It's hard to say, especially since there were probably matching changes in the Internal Revenue Code as well.
Usually you can make arguments to help interpret language like this from its context by reading other sections of the law. But what if other sections of the law are worded similarly?
I tend to think that no one intended this result. Will the court rule on intent?
This is highly political charged and tight legal analysis goes out the window when politics enters the room.
It will be interesting to see what happens.
More Constitutional Challenges
In addition to the above legal challenge, the Constitution Daily discusses three additional complications. Please consider Is Obamacare’s legality still in doubt?
From the very day in March 2010 that the President signed that measure into law, it has been under assault on three fronts: in the courts, in Congress, and in nearly three dozen states. Its central feature is a mandate that individuals obtain health insurance, or pay a penalty to the Internal Revenue Service. Many Americans believe, and even President Obama has been known to say, that the Supreme Court has upheld that mandate. Perhaps only lawyers and judges can draw a point so finely, but the Court last year actually upheld the penalty without explicitly upholding the duty to obtain insurance, and now both are scheduled to go into effect next year.
One of the reasons why Obamacare cannot escape repeated challenges in court is that it has so many parts to it, and arguments can be made against a good many of them. And one of the reasons that it may continue to be vulnerable, in a potentially devastating way, is that so many of the parts are interacting, and a court decision against one may have a spreading impact on others.
The reality is that the Supreme Court has only begun to be asked to reject key parts of the law, with more cases making their way through the lower courts. There are four potentially very significant new challenges under way.
Within coming weeks, the Justices are expected to act on the first of this new round of challenges. That is a case being pursued by Liberty University, the religious college in Lynchburg, Va., which contends that the individual insurance mandate interferes with its and its workers’ religious beliefs – a point that the Supreme Court did not consider last year.
The administration itself has asked the Court to review, in the current term, the part of Obamacare that requires employers with more than 50 employees to provide their workers with coverage for a variety of birth-control drugs and pregnancy screening methods. This second challenge developed in more than five dozen lawsuits across the country, with conflicting results that the Supreme Court is likely to step in to resolve.
The third new legal protest that may reach the Justices in coming months is a claim, now under review by a federal appeals court in Washington, that the penalty provision that the court upheld last year is itself unconstitutional. The argument is that, since the Constitution requires that all tax and revenue measures must get their start in the House of Representatives, this provision is invalid because it originated in the Senate. A federal judge blocked that claim, on procedural grounds.
The fourth new challenge is just getting started in several federal courts around the country, and it apparently has major potential for disrupting Obamacare’s interdependent scheme of coverage and thus is growing in popularity with the law’s critics.
Under the law, if individuals’ income is too low for them to afford insurance coverage, they are exempted from the mandate to buy it and can expect to be eligible for government-provided medical care for the poor.
But the government wants many of those individuals to be able to shop for affordable coverage on the new “exchanges,” or insurance marketplaces, that the law creates. To make them eligible, Obamacare provides a tax credit they can apply toward insurance premiums. The tax credit offer is considered vital to making the exchanges work, to assure that many of the nation’s lower income families get covered, and to assure that there are enough customers to keep insurance companies offering affordable policies in those exchanges.
The Internal Revenue Service has ruled that this tax credit will be available to lower income people in every exchange across the country. But the new lawsuits contend that the IRS has simply misapplied the law. The law, as they read its wording, says that the tax credit only applies to those shopping at an exchange run by a state government, not at the federal substitutes.
Will Any Challenges Work?
I am not a lawyer, but the first two attacks presented in the Constitution Daily seem narrow enough in scope the court could easily uphold Obamacare but allow individuals to opt out of aspects of the law for documented religious beliefs.
If someone has no insurance now, corporate or otherwise, and can prove on religious grounds that religion is the reason, let those persons opt out, under the provison they never take medical care at taxpayer expense. How many individuals will that be?
The second attack is even sillier. After all, the law does not force anyone to take birth-control pills or undergo pregnancy screening. If a person does not want those procedures, the remedy is easy: Don't take birth control pills and don't undergo medical procedures you don't want!
The second challenge is so ridiculous it's no wonder Obama actually wants a Supreme Court ruling.
The fourth challenge is the same one presented by the LA Times. My friend offered an educated guess worth repeating "This is highly political charged and tight legal analysis goes out the window when politics enters the room."
I suggest the same may apply to the third argument "Obamacare is invalid because it originated in the Senate".
It is the third and fourth challenges that may have legs.
Second Thoughts?
One California resident with second thoughts says "I was all for Obamacare until I got the bill".
Recall that the Supreme court ruling was 5-4. Is it inconceivable that one of the 5 has second thoughts? If so, Obamacare may die a sudden death and we can start all over.
Let's hope so. This law, as passed is a clear boondoggle in more ways than one.
As many as 16 million Americans will lose their existing coverage that they want to keep. For details, please see More Obamashock! Glitches Hit Paper, Phone Applications; Obamacare Glitch Great Quotes.
Geeze. Too bad we only have one political party; we could have defunded it with an opposition
Well, at least the guys got in some texting time and manicures at the Sebelius hearing yesterday. A lot of empty words
It’s a law that isn’t being applied evenly and fairly, and therefore I’m not playing. Exempt one, exempt all, or toss this fascist piece of crap.
They’d win in any court that doesn’t have “kangaroo” as a prefix.
However, in the era of the Obamadork and his West Wing Clown Show of Felon/Cretins, there are not many courts fortunate enough to have avoided the appendage.
Mike Shedlock is an idiot. Here, he is saying that PAYING for contraceptive and abortion coverage (in your premium) doesn't abridge one's religious rights, no matter whether such things are considered sin in your religion.
He is stupidly ignoring the forced providing of money to support these things in order to focus on the personal choice whether to use them. If one pays into a fund to hire a hit man, one is guilty of murder, under the law. But to Shedlock, if the victim is not yet outside the womb, it's no longer murder.
Courts packed with liberal activist judges, they are required by the liberal agenda to uphold this law regardless of the cost.
Unilaterally granting waivers and delays to a law passed by Congress, to benefit your friends and supporters is UNCONSTITUTIONAL!!!
He spents a good amount of space in the comme ts calling his readers a bunch of nutters for not wanting to restrict gun owner rights. He lost most of his readers that day.
Waste of time. It would have to make it’s way past the supreme court and obamacare isn’t going to be struck down there until the NSA is ripped out at the root and burned down to ash. It’s a little obvious that they used the NSAto compromise roberts. Why else would he go from visibly objecting to a state of the union dress down from obama to changing his vote to support obamacare? Other whistleblowers before Snowden have said the NSA were wiretapping high court judges.
Too bad the GOP put up clowns like Todd Akin, Christine O’Donnell, Sharron Angle, Richard Mourdock, Ken Buck, Tommy Thompson, Connie Mack, etc. or we’d actually have the votes today to make something happen. Too many on this forum seem obsessed with purging the Senate of the Republicans who have actually demonstrated an ability to win election in their states, rather than putting up solid candidates that can knock out the ultra liberal Dems. There are some great opportunities coming up in 2014 (LA,AR,WV,MO,NC,SD,NH,AK etc.). Let’s not blow it by putting up inexperienced baffoons who walk straight into the Liberal media’s minefields and torpedo their election chances.
Last week, I read that the ObamaCare law specifically does not allow the IRS to collect the ObamaCare fine via a civil or criminal lawsuit.
Thus, according to this report, the IRS cannot garnish your paycheck or put liens on your property to collect the ObamaCare fine.
According to the article, the law allows the IRS to collect the fine ONLY by subtracting money from a person's tax refund.
Thus, if you are careful about your withholding and estimated taxes, if you have NO tax refund due at the end of the year, the IRS has no way to collect your fine.
Has anyone seen a follow up on that story?
Seems almost too good to be true.
If true, however, it raises an important legal question.
Chief Justice John Roberts upheld ObamaCare by claiming that the “fine” is actually a “tax.”
But, if the IRS has NO coercive statutory power to collect John Robert's “tax,” how can he still claim that the “fine” is a “tax?”
With almost no effort, 100% of the people who are “fined” can avoid paying the “fine.”
Don’t forget the clown that got the final vote from Weird Al Franken...Norm Coleman.
Congress, including the GOPe have no problem with this.
Can reform and the salvation of our republic possible emerge from DC?
Subsidize one, subsidize all and consider that subsidizing any Federal employees means they are being subsidized twice, once for their salary,provided out of tax monies and which exceeds similar positions in the private sector and once again for their benefits, which are greater than those in the private sector. Plus other perks they may get for being elected officials or staff of elected officials.
That was put in there to coerce the EITC recipients. Their tax return has nothing to do with their listed exemptions or tax rate and is simply a subsidy based on their household size and AGI.
I'm talking about fines for not purchasing health insurance.
According to the article, the IRS cannot file a civil or criminal lawsuit against ANYONE who fails to pay the O-Care fine.
No lawsuit means no jail time, no garnishment, no seizures, no liens.
They have only one way to collect the fine if it is not paid - if someone gets a tax refund.
Millions of people get refunds that are not related to EITC.
Income tax-paying workers can control their exemptions and thereby affect their withholding, making certain not to have a tax refund due that could be confiscated.
Part time, low income workers who do not pay income taxes, instead get their withholding returned and a check for an amount for each dependent.
The taxpaying workers do not wish to have a refund that is actually an interest-free loan to the government.
Non-taxpaying workers see the entitlement known as an EITC for what it is and want it to be as large as possible.
The EITC recipient can be coerced by a threat against their *refund* and will comply in order to not endanger that *refund*.
The taxpayer will manage their withholding to avoid having a refund and therefore, will not be coerced.
Seemed clear to me. Sorry if it wasn’t.
On that, I agree. And I am getting to like obamacare more every day. The more misery it causes those who inflicted it and Obama on me, the better I like it.
Coercion against the EITC’s is unavoidable, which I had not thought about.
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