Posted on 12/04/2013 11:28:13 AM PST by EBH
If the law known as Obamacare gets struck down in the latest court challenge, the victors will thank a Hudson resident and Case Western Reserve University law professor who discovered what the law's critics say is a major flaw.
Jonathan Adler, 44, says he didn't even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship. But his analysis of the Affordable Care Act, or ACA, has led to four pending cases in federal courts, two likely to be decided within months, that offer ACA opponents their best chance of gutting the law.
Oral arguments were heard in one of the cases, in U.S. District Court in Washington, DC, on Tuesday.
Adler, a case law professor since 2001, pored over the ACA after it passed in 2010 and found this: Congress created a system for providing tax subsidies and penalties in order to give incentives for people to buy health insurance or for employers to provide it. States were supposed to create new agencies that would offer online insurance-shopping options, and states would tie into a federal tax system to dole out the subsidies and assess the penalties.
But the ACA made clear, Adler says, that the subsidies were to be used in these new state marketplaces, or "exchanges." There is no record, he says, that shows Congress directed the subsidies to what has since evolved: a large, federally run, health-policy shopping exchange. When the subsidies are mentioned in the law, Adler says, it is always and only in the context of state exchanges.
(Excerpt) Read more at cleveland.com ...
I learned to not trust the Courts a long time ago. They’re a crap-shoot. I’ve seen Judges blatantly break the law almost every time I’ve been in a courtroom, even when they know for a fact you’re going to break them on appeal. They can’t help themselves.
I’m all for it.
I’m a realist, therefore one of two paths will occur:
1. Continued blackmail will make Roberts swat it away like some say in this thread OR
2. Roberts will use it as a lifeline to regain sanity because he wasn’t blackmailed after all.
Not sure which, obviously I hope for the latter.
I hope that most freepers understand that the main problem with Obamacare does not concern technicalities in the poorly written law that law professors are unsurprisingly finding in Obamacare. The problem with Obamacare that every legal voter should be able to point out is the following. The states have never delegated to Congress, via the Constitution, the specific power to regulate, tax and spend for public healthcare purposes.
In fact, regardless what activist justices want everybody to think about Obamacare, the Supreme Court had previously clarified that the states have never granted Congess the specific power to address public healthcare issues.
"State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. (emphases added)" --Gibbons v. Ogden, 1824."Congress is not empowered to tax for those purposes which are within the exclusive province of the States." --Justice John Marshall, Gibbons v. Ogden, 1824.
In other words, corrupt Congress wrongly ignored its constitutional Article V requirement to petition the states to amend the Constitution to grant Congress the specific power that it needs to regulate public healthcare before establishing Obamacare. It is important to note that the states could have chosen to not grant Congress such power by not ratifying the proposed amendment.
It's sort of surprising how many people, who one would expect to otherwise know better, are unaware that we live in a post-constitutional society. Included in this group are law professors who are seemingly under the impression that specific language governs law, and not the other way around.
I had a good time briefly discussing this point with an earnest "impeach Obama" volunteer the other day. Few realize that in a real representative democracy, a low IQ, drug addled loser would not be president. Ergo, his presence is indicative of something larger.
Fattening people up on junk food prepares them for health care expenditures that can be used to drive the national debt even higher. It always, always points back to perpetually increasing the debt.
The law authorizes “premium assistance” - tax credits and subsidies - in state-run exchanges (Section 1311) but not federal ones (Section 1321)
http://online.wsj.com/news/articles/SB10001424052970203687504577006322431330662
http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/content-detail.html
Bookmark!!!!
What are the chances for a successful repeal??
Obamacare is like Prohibition—looks good on paper but just can’t work. It will go the way of Prohibition as well.
I’m starting to think that maybe we should be thankful for the Roberts ruling. Think about where we might be today if he ruled the other way and the law was shut down.
The press and Dems would be blaming the downfall of Obamacare on a conservative judge and that the country is being deprived of what would have been a magnificent reform on the healthcare system.
Dems would be poised to take back the House in 2014. Harry Reid could use the nuclear option for all Senate business. Hillary would be a lock for 2016.
Maybe Roberts did us a favor.
He's probably the only person in the world to have read it.
People were saying he did a us a favor for 2012. It didn't work out that way.
So I expect that the counterargument will be that there ARE state exchanges. 50 of them (plus DC, etc). Some are run by the FedGov, others by the states. But while there is healthcare.gov it’s just a portal and not a consolidated Federal Exchange.
If I read those sections of law correctly, then Obamacare spent talk about a common Federal exchange, but does differentiate between state run state exchanges and federally run state exchanges. IOW the system that currently exists.
Which means that this professor actually has a point. And a damn good one ...
simple answer is no he didn’t do us any favors…. he sold out and his delirious ruling proves the point
A mere glitch in the law.
I think there is a provision in Obamacare that allows Obama to unilaterally ignore, reinterpret, or amend any provision in the law.
I've always wondered that myself. I would like to believe so, but no human is wise enough to can plan the cascade of events and consequences as they play out months and years in the future.
I’m still studying it.
I’m beginning to think that the “law” is a program... an algorithm. What triggered this thought is Sec 1311(f)1 discussing “interstate exchanges”. Step 1 of the algorithm is destruction of the current system. This is occurring now. Step 2 is the “evolution” of exchanges to regional/interstate exchanges, to “solve” the problems caused by Step 1. The third and final step being the further evolution to a single national exchange.
Just a suspicion at this point.
The authors may have planned the cascade of events and consequences.
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